10 Important Judgments on Service Law in India
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March 15, 2018
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March 15, 2018
Departmental Inquiry shall Conclude within 6 Months
Case name: Prem Nath Bali v. Registrar High Court of Delhi
In this case, the disciplinary proceedings, which commenced in the year 1990, continued for more than nine years. Pending disciplinary proceedings, the appellant sought revocation of suspension order but such representation made by the appellant was not considered.
The Supreme Court in the case took a strong note of the undue delay caused in disciplinary proceedings. The Court stated that due to such unreasonable delay, the appellant naturally suffered a lot as he had to survive only on suspension allowance for a long period of 9 years.
Other key observations made by the Court in the case are:
That it is the duty of the employer to ensure that the departmental inquiry initiated against the delinquent employee is concluded within the shortest possible time by taking priority measures.
That in cases where the delinquent is placed under suspension during the pendency of such inquiry then it becomes all the more imperative for the employer to ensure that the inquiry is concluded in the shortest possible time to avoid any prejudice to the rights of the delinquent employee.
That every employer (whether State or private) must make sincere endeavor to conclude the departmental inquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit.
Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year.
The entire case can be accessed here.
Delhi HC on Sexual Harassment at Workplace
Case name: Shanta Kumar v. Centre of Scientific and Industrial Research & Ors.
In this recent ruling, the Delhi High Court was confronted with an alleged case of sexual harassment at workplace.
The Court made following observations in the case:
That undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behaviour. Such physical contact must be in the context of a behaviour which is sexually oriented. Plainly, a mere accidental physical contact, even though unwelcome, would not amount to sexual harassment.
That a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment.
That all physical contact cannot be termed as sexual harassment and only a physical contact or advances which are in the nature of an “unwelcome sexually determined behaviour” would amount to sexual harassment.
The entire case can be accessed here.
Departmental Enquiry on Vague Charges shall be Vitiated
Case name- Shri Anant R. Kulkarni v. Y.P. Education Society & Ors.
In this case, the Supreme Court made some key observations pertaining to disciplinary proceedings which enumerated below:
That once court sets aside an order of punishment on the ground that enquiry was not properly conducted, Court should not preclude employer from holding the enquiry in accordance with law. It must remit the case to disciplinary authority, to conduct enquiry from the point it stood vitiated, and to conclude the same in accordance with law. However, resorting to such a course depends upon gravity of delinquency involved.
Court/tribunal should not generally set aside departmental enquiry, and quash charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. While setting aside a departmental enquiry, the Court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is in fact in the interest of clean and honest administration that proceedings are allowed to be terminated, only on the ground of a delay in their conclusion.
Departmental Enquiry on vague and unspecified charges – In this context, the Supreme Court held that a delinquent shall not be served a charge sheet, without providing him, a clear, specific and definite description of charge against him.
Departmental Enquiry against retired employee– In this case, the Court also enumerated the circumstances when departmental enquiry could be conducted against retired employee. The Court held that relevant rules governing the service conditions of an employee are determining factors as to whether and in what manner domestic enquiry can be held against an employee who stood retired after reaching the age of superannuation. Generally, if the enquiry has been initiated while the delinquent employee was in service, it would continue even after his retirement, but nature of punishment would change. The punishment of dismissal/removal from service would not be imposed.
The entire case can be accessed here.
Promotion available during Claimant’s period of extension of service can’t be granted to the Claimant
Case name: H.M. Singh v. Union of India, (2014) 3 SCC 670
This case dealt with service Law Promotion Entitlement to promotion during period of extension of service. In the case, the appellant’s claim for promotion to post of Lt. General was rejected on ground that he was on extension of service.
In view of the aforesaid, the Supreme Court held that in situations wherein an officer attains the age of retirement without there being a vacancy for his consideration to a higher rank, even though he is eligible for the same, such an officer who is granted extension in service, cannot claim consideration for promotion, against a vacancy which has become available during the period of his extension in service.
The entire case can be accessed here.
Non-Supply of Inquiry Report to the delinquent employee in disciplinary proceedings
Case name: Uttarakhand Transport v. Sukhveer Singh
In this case, the Supreme Court has primarily ruled on the legal principle of Non-Supply of Inquiry Report to the delinquent employee in disciplinary proceedings and the consequences that follow when the delinquent employee has not been prejudiced by non-supply of inquiry report prior to the issuance of show cause notice.
Key observations by the Supreme Court are enumerated below:
That Non-supply of Inquiry Report does not automatically results in Re-instatement of Delinquent Employee- When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits.
That acts of corruption/misappropriation cannot be condoned, even in cases where the amount involved is meagre.
The entire case can be accessed here.
In Absence of Disciplinary Authority, Charge Sheet becomes Non est
Case name: Union of India v. B.V. Gopinath, (2014) 1 SCC 351
In this case, the Supreme Court in view of the facts and circumstances of the case, clearly stated that in absence of approval of disciplinary authority, charge memo/charge-sheet becomes non est and hence is liable to be quashed.
It was further held that all decisions regarding approval, modification/amendment, dropping of charge memo have to be taken by disciplinary authority for initiation of disciplinary proceedings. Hence, disciplinary authority alone is required to exercise that power, otherwise, it would go against established maxim delegatus non potest delegare.
The entire case can be accessed here.
7. Jobs Secured on the basis of Fake Caste Certificates to be Rendered Invalid
Case name: Managing Director FCI and Ors. v. Jagdish Balram Bahira and Ors.
Recently, the Supreme Court was confronted with a batch of petitions involving individuals who sought the benefit of public employment on the basis of a claim to belong to a beneficiary group which upon investigation was found to be invalid. In the case Supreme Court has rendered an elaborate explanation of usurpation of constitutional benefits by persons who do not genuinely belong to beneficiary groups.
The crux of Apex Court’s ruling in the instant case was that when a person who does not belong to a caste, tribe or class for whom the reservation is meant, seeks to pass off as its member, such a stratagem constitutes a fraud on the Constitution. Public employment is a significant source of social mobility. Access to education opens the doors to secure futures. As a matter of principle, in the exercise of its constitutional jurisdiction, the court must weigh against an interpretation which will protect unjust claims over the just, fraud over legality and expediency over principle
The Court broadly discussed the following issues in the case:
Whether a person who has secured the benefit of public employment or admission to an educational institution on a reserved quota is entitled to retain the benefits obtained despite the invalidation of the claim to belong to the tribe or caste?
Whether there should be a retrospective application of withdrawal of benefits secured on the basis of a caste claim which has been found to be false?
Whether the dishonest intent is a requisite for withdrawal of benefits secured on the basis of a caste claim which has been found to be false?
The Court at length discussed the proposition as laid down by the Supreme Court in the cases of Kavita Vasant Solunke vs. State of Maharashtra and Shalini Gajananrao Dalal v. New English High School Association. In these case, the Court ruled that candidates who honestly and correctly claimed to belong to a particular Scheduled Caste/Scheduled Tribe but were later on found by the relevant authority not to fall within the particular group envisaged for protected treatment would not be negated of the benefits already enjoyed by them and would continue in service. However, such candidates would be disentitled to claim any further or continuing benefit on the predication of belonging to the said Scheduled Caste/Scheduled Tribe.
The Apex Court in the instant case overruled the aforesaid finding of the Court and stated that the principles as settled in Kavita Solunke and Shalini case were not correct and might lead to serious consequences.
The entire case can be accessed here.
SC’s Guidelines for Employer in case of Suppression of Information by Employee
Case name: Avtar Singh v. Union of India
In this case the Court considered the cleavage of opinion in various decisions on the question of suppression of information or submitting false information in the verification form as to the question of having been criminally prosecuted, arrested or as to pendency of a criminal case.
The Apex Court in the case laid down the following guidelines for the employer and stated that any of the following recourse appropriate to the case may be adopted: –
In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.
Compassionate Appointment cannot be claimed as a matter of right
Case name: Rajasthan State road Transport Corporation and ors. v. Revat Singh
In this case, the Supreme Court while relying on its decisions in the case of I.G.(Karmik) and others vs. Prahalad Mani Tripathi and Steel Authority of India Limited v. Madhusudan Das, held that compassionate appointment cannot be granted to a post for which the candidate is ineligible. It was further held in said case that even though higher post was applied for on Page 5 Page 5 of 8 compassionate ground, when a lower post offered considering qualification and eligibility as per rules was accepted by the candidate, he cannot claim higher post.
The Court also noted that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. The criteria laid down i.e. the death of the sole bread earner of the family, must be established. It is meant to provide for a minimum relief. When such contentions are raised, the constitutional philosophy of equality behind making such a scheme be taken into consideration. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said rule. It is a concession, not a right. (SBI v. Anju Jain, (2008) 8 SCC 475)
The entire case can be accessed here.
Departmental Inquiry is no Ground to Deny Pension or Subsistence Allowance to Employee
Case name: UCO Bank & Ors. v. Rajendra Shankar Shukla
In the case, the Supreme Court made a scathing attack on the Appellant Bank in view of illegalities in departmental inquiry against the Respondent Employee including the fact that the Respondent employee was denied even the subsistence allowance during the pendency of the inquiry against him.
In the case, the Bench considered the question of law on access to justice in a departmental inquiry. The Court opined that the Respondent was not given a fair opportunity to defend himself by denying him financial resources.
The Apex Court in the case held that an employee is entitled to subsistence allowance during an inquiry pending against him or her but if that employee is starved of finances by zero payment, it would be unreasonable to expect the employee to meaningfully participate in a departmental inquiry. Access to justice is a valuable right available to every person, even to a criminal, and indeed free legal representation is provided even to a criminal. In the case of a departmental inquiry, the delinquent is at best guilty of a misconduct but that is no ground to deny access to pension or subsistence allowance.
