Disciplinary proceedings

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Vijay Kumar Shukla, J., decided on a petition which related to the dispute pertaining to the nurses working in different Government Hospitals/Dispensaries/CHCs/PHCs of the State, who had proceeded on strike on 14-06-2021. It was prayed that the strike by nurses in the State called by the respondent 4 Joint Forum Nursing Association, be declared illegal.

Mr D.K.Upadhyay, counsel for the petitioner submitted that approximately 50000 Nurses of the State are on strike, which was causing huge inconvenience to the people of the State.

Mr Ashish Anand Barnard, Additional Advocate General submitted that this Court earlier on 25-07-2018 had already declared the strike by the Nurses of the State, illegal. In the present case, the State Government had issued a notification dated 28-06-2021 declaring the services rendered by the Doctors, Nurses and other health workers, as essential service by invoking Section 4(1) of the Essential Services Maintenance Act and therefore, the ongoing strike by the respondent should be declared illegal.

Mr Atul Choudhary, counsel appearing for the Joint Forum Nursing Association submitted that despite long standing demands of the Nurses in State, the State Government has not taken any steps for redressal of their grievances, except, of course, in respect of changing nomenclature of their designation.

The Court declared the strike by the nurses in the State as illegal and condemned their action especially because such a call has been given at a time when the country has still not been able to come out of the ill effects of the second wave of COVID-19. The Court further directed that t the respondent Nursing Association shall immediately call off their strike and resume their duties by the next day itself. It was assured that the respondent/State Government shall soon thereafter notify constitution of a Committee headed by the Additional Chief Secretary, Health with the Principal Secretary, Finance Department and Director, Health Services as its members. The Committee shall invite the representatives of the Nursing Association for negotiations and submit its report to the State Government positively within a period of two months and shall pass appropriate order within a month thereafter. It was further stated that if the Association of Nurses despite assurance fails to resume their duties by tomorrow, it would be open to the State Government to take appropriate action against them in accordance with law.

The Court however held that the government shall sympathetically consider the demand for not taking any disciplinary action for the period of absence of the striking Nursing employees so as not to precipitate the matter and consider granting them leave of any kind that may be due in their account or otherwise, if no such leave is found due in the accounts of the respective nursing employees, grant such leave without pay, but shall not treat such period as break in service.[Nagrik Upbhokta Margdarshak Manch v. State of M.P., 2021 SCC OnLine MP 1349, decided on 07-07-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The Division Bench of Sanjay Kishan Kaul and Hemant Gupta, JJ., while addressing the matter, expressed that,

The public officers of the Executive are also performing their duties as the third limbs of the governance. The actions or decisions by the officers are not to benefit them, but as a custodian of public funds and in the interest of administration, some decisions are bound to be taken.

“summoning of the public officer is against the public interest as many important tasks entrusted to him gets delayed, creating extra burden on the officer or delaying the decisions awaiting his opinion.”

Factual Matrix

In the instant matter, the appeal challenged the orders of Allahabad High Court wherein the appellants were directed to calculate and pay 50% of the back wages to the respondent and to grant all the consequential benefits.

Petitioner who was posted at the State of Uttarakhand was posted as a Medical Officer and transferred to State of Uttar Pradesh as per the option given by the Medical officers. Though the petitioner was posted at Badaun, he did not join there and was well satisfied by giving a letter to Director of Medical Health Services.

Subsequently, in the year 2006, the petitioner claimed a writ of mandamus commanding the State to post the writ petitioner as a Medical Officer in any Hospital according to his qualification and experience in the specialized cadre. Single Judge allowed the same and concluded that the posting order or transfer order was never communicated or served upon the petitioner at any point of time.

In pursuance of the High Court order, a fresh posting order was issued and subsequently, another petition seeking direction for payment of back wages was filed.

Principal Secretary declined the grant of back wages for the reason that petitioner did not perform any government work for the period from 5-07-2003 till 9-12-2016 and the same cannot be treated as a compulsory waiting period under the provisions of Fundamental Rules 9(6)(b)(iii) of Financial Hand Book Volume-2 Part 2-4 and hence he was granted extra ordinary leave for the said period.

Initially, it was decided by the Single Judge Bench that State could not produce as to how and when the posting order was communicated to him. Court was aware of the fact that the petitioner was relieved by the Uttarakhand Government and a communication was addressed by the Joint Director with regard to the joining report of the petitioner.

In Court’s opinion, when the petitioner stood relieved from Uttarakhand, High Court could not have returned a finding that the State did not show as to how the transfer and posting order was conveyed to the petitioner.

High Court overlooked Supreme Court’s decision in State of Punjab v. Khemi Ram, AIR 1970 SC 214, wherein a question arose that whether suspension order was to be actually received by the employee to be affected. Supreme Court examined the question as to whether communicating the order means its actual receipt by the concerned government servant.

Analysis, Law and Decision

Supreme Court on perusal of the facts and circumstances of the case held that the petitioner was relieved by the Government of Uttarakhand in the year 2003, he filed the petition in 2006, meaning he was awaiting his posting orders for a period of 3 years.

Further, it was noted that he started his own private practice in the said period and intentionally delayed the decision on petition for almost 13 years.

Court expressed that the petitioner’s conduct suggested that he was not keen on joining as a Medical Officer after he was relieved by the Uttarakhand Government.

Feigned Ignorance

Uttarakhand Government’s Order relieved the petitioner on 5-7-2003 in pursuance of the order of the Government of Uttar Pradesh. Bench in view of the said position stated that it was a case of feigned ignorance.

Medical Officer: Idle for 13 long Years?

Petitioner was gainfully employed, as noted by the Single Bench. It was impossible for the Court to imagine that a Medical Officer would sit idle for 13 long years, hence the grant of 50% back wages would be giving benefit of one’s own wrong who intentionally abstained from duty for 13 long years and now wanting to take benefit of back wages as well.

Petitioner’s stand was not only unjustified but wholly condemnable. 

Bench remarked that, State should have taken steps to initiate disciplinary proceedings.

State was remiss in not taking action against the petitioner for absence from duty.

Another disturbing feature noted by the Court was that the Secretary, Medical Health was called in-person in the Court.

“…certain High Courts have developed a practice to call officers at the drop of a hat and to exert direct or indirect pressure.” 

Line of Separation

Bench expressed that, the line of separation of powers between Judiciary and Executive is sought to be crossed by summoning the officers in a way of pressurizing them to pass an order as per the whims and fancies of the Court.

It is always open to the High Court to set aside the decision of the Executive which does not meet the test of judicial review but summoning of officers frequently is not appreciable at all. The same is liable to be condemned in the strongest words.

In Supreme Court’s decision of Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, observed that

Judges must know their limits. They must have modesty and humility, and not behave like emperors. The legislature, the executive and the judiciary all have their own broad spheres of operation. It is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.

Conclusion

Bench reiterated that public officers should not be called to Court unnecessarily. Dignity and majesty of the Court is not enhanced when an officer is called to Court. Respect to the court has to be commanded and not demanded and the same is not enhanced by calling public officers.

Power of Pen

Courts have the power of pen which is more effective than the presence of an officer in Court. Elaborating more on this aspect, Court suggested that if any particular issue arises for consideration before the Court and the Advocate representing the State is not able to answer the same, it is advised to write such doubt in the order and give time to the State or its officers to respond.

Therefore, in the present matter, the petitioner was posted at Badaun and was he was to report to the same place. He should have asked for a transfer after reporting, if permissible by the State and he should not have dictated the place of posting without even joining the place where he was first posted.

In view of the above discussion, while allowing the appeal, Supreme Court decided that the High Court orders were wholly unjustified, unwarranted, arbitrary and illegal. [State of U.P. v. Dr Manoj Kumar Sharma, 2021 SCC OnLine SC 460, decided on 9-07-2021]

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of Uday Umesh Lalit, Hemant Gupta* and S. Ravindra Bhat, JJ., addressed the instant appeal filed against the order of the High Court of Judicature at Allahabad, whereby the High Court had declared the order of punishment passed by Milk Commissioner/Registrar as incorrect. The Supreme Court stated,

“In terms of the specific statutory regime referable to Section 122-A of the 1965 Act, Rule 15, would be the governing principle rather than Regulation 87 framed in exercise of regulation making power referable to the general dispensation under Sections 121 and 122 of the 1965 Act. Rule 15 does not contemplate that the Chairman of the Committee is required to have any prior concurrence of any authority.”

Issue before the Court

A petition was filed before the High Court to assail an order of punishment, whereby the one Jagpal Singh (employee) was ordered to be reverted to the minimum pay scale and the period of suspension was to be considered as a period spent by the employee in service. The order of punishment was passed after the prior approval Commissioner (Dairy Milk), designated as Registrar by the State Government. The said punishment was imposed due to manipulation in the weight measurement.

The employee contended that there was an undue and unexplained haste in passing the impugned order as the order was passed without taking prior approval under Regulation 87 of the Service Regulations from the competent authority i.e., the Uttar Pradesh Co-operative Institutional Service Board. The High Court found that the punishment order had been passed by the Chairman of the Administrative Committee and the approval for the punishment had also been granted by the same person. Therefore, relying on the case of Chandra Pal Singh v. State of U.P., 2018 SCC OnLine All 5992 the Court held that the approval in the instant case was inappropriate and was given by an incompetent authority.

Noticeably, the Administrative Committee in exercise of the powers conferred under Rule 10 of the Dairy Service Rules read with proviso to Rule 15 passed an office order that prior to imposing of penalty, the approval of Dairy Milk Commissioner/Registrar would be mandatory. It is in terms of the said Circular that the order of punishment was passed against the employee after approval from the Commissioner (Dairy Milk), discharging functions as the Registrar.

Findings of the Court

The Bench opined that the High Court in the impugned judgment and in Chandra Pal Singh’s case proceeded on wrong assumptions of facts and law. Pertinently, by a notification dated 17-11-1979 issued by the State Government, Pradeshik Co-operative Dairy Federation, Central or Primary Milk Societies, whose area of operation extends to more than one district or State and Co-operative Milk Unions, were taken out of the control of Uttar Pradesh Co-operative Institutional Service Board. Instead a Selection Committee was constituted in respect of Category I and II employees. Thereafter, it was the Selection Committee who was empowered for the purpose of recruitment, training and disciplinary control of the employees of Dairy Co-operative Societies until the Dairy Service Rules came into force upon publication of the Gazette on 29-08-1984. Section 122-A inserted in the 1965 Act which opens with a non-obstante clause should be taken to have an overriding effect over the general regime; accordingly,

“The Dairy Service Rules have been framed in exercise of the jurisdiction conferred under Section 122A of the Act. The Regulations can be framed by the Registrar or the State either under Section 121 or 122 of the Act or in terms of Rule 9 of the Dairy Service Rules. Such Rules would have precedence over the Regulations, which are framed or are required to be framed either by the Registrar or by the Authority entrusted with the task of recruitment, training and disciplinary control.”

The proviso to Rule 15 empowered the Administrative Committee constituted under Rule 5 as an Appointing Authority and the authority to exercise disciplinary control over the employees of the centralised services till the time regulations are framed. Thus, the Bench was of the view that the resolution dated 20-09-984 would be applicable in respect of other service conditions. However, with regard to disciplinary control, it would be the Dairy Service Rules which would be applicable.

Therefore, the Bench opined that in terms of proviso to Rule 15, the Chairman of the Administrative Committee is the Appointing and Disciplinary Authority. Hence, the Service Regulations would be inapplicable to determine the Appointing Authority and/or the Disciplinary Authority in respect of the employees of Co-operative Milk Societies. The Bench stated,

“The Resolution dated 20-09-1984 will not determine the Appointing or Disciplinary Authority, the same being covered by the Statutory Rule namely the Dairy Service Rules.”

Regulation 106 of the Service Regulations which empowers the State Government or the Registrar to pass such orders not inconsistent with the Regulations in respect of termination, dismissal or removal would not be applicable in the instant case, since the punishment imposed was of reversion and not of either termination, dismissal or removal. Therefore, the order of punishment passed by the Chairman of the Administrative Committee was by the competent Disciplinary Authority.

Sir William Wade in his Administrative Law stated:

“But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity…” It was further stated: “In administrative cases the same exigency may arise. Where the statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if he is personally interested.”

The Milk Commissioner had been appointed as Registrar in exercise of the powers conferred on the State Government by the Act. The approval from the Registrar was in terms of the resolution of the Administrative Committee constituted in terms of Dairy Service Rules. Considering that the exercise of the powers under the Act were conferred by designation and the prior approval of the punishment was by the Registrar; if, incidentally, the person holding the post of Registrar was also Chairman of the Administrative Committee, it could not be said to be illegal.

Consequently, since the Chairman of the Administrative Committee happened to be the Registrar, the decision to impose punishment may not require prior approval. Hence, it was held that there was nothing wrong in the exercise of power by the Chairman, neither was there any error in the order of punishment passed by the Administrative Committee. The instant appeal was dismissed.

[Milk Union & Dairy Federation Centralized Services v. Jagpal Singh, 2021 SCC OnLine SC 245, decided on 23-03-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsSupreme Court

Supreme Court: In a case where Sub-Inspector in the Railway Police was compulsorily retired for gross neglect of duty, the 3-judge bench of Dr. DY Chandrachud, Indu Malhotra* and KM Joseph, JJ has set aside the Bombay High Court order that directed re-instatement with consequential benefits, and payment of backwages to the extent of 50%.

The respondent, the present case, was charged with gross neglect of duty for failing to detect and prevent three instances of theft and abuse of authority by using unnecessary violence towards a passenger.

Holding that the High Court was not justified in setting aside the order of compulsory retirement, the Court said,

“A police officer in the Railway Protection Force is required to maintain a high standard of integrity in the discharge of his official functions. In this case, the charges proved against the Respondent “were of neglect of duty” which resulted in pecuniary loss to the Railways. The Respondent was a Sub-Inspector in the Railway Police discharging an office of trust and confidence which required absolute integrity.”

It was further stated that the primary object of constituting the Railway Protection Force is to secure better “protection and security of the railway property.”

“The restricted power of arrest and search conferred on members of this Force is incidental to the efficient discharge of their primary duty to protect and safeguard railway property, and to uphold the law.”

On the scope of interference by the High Court in exercise of its writ jurisdiction with respect to disciplinary proceedings, the Court said that it is not the function of the High Court under its writ jurisdiction to review the evidence, and arrive at an independent finding on the evidence. The High Court may, however interfere where,

  • the departmental authority which has held the proceedings against the delinquent officer are inconsistent with the principles of natural justice,
  • the findings are based on no evidence, which may reasonably support the conclusion that the delinquent officer is guilty of the charge, or in violation of the statutory rules prescribing the mode of enquiry, or the authorities were actuated by some extraneous considerations and failed to reach a fair decision, or allowed themselves to be influenced by irrelevant considerations, o
  • the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion.

If however the enquiry is properly held, the departmental authority is the sole judge of facts, and if there is some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a writ petition.

In the present case, the Court found that there was no allegation of malafides against the disciplinary authority i.e. Chief Security Commissioner, or lack of competence of the disciplinary authority in passing the order of compulsory retirement, or of a breach of the principles of natural justice, or that the findings were based on no evidence.

It hence, held that the High Court was not justified in re-appraising the entire evidence threadbare as a court of first appeal, and substituting the Order of punishment, by a lesser punishment, without justifiable reason.

[Director General of Police, Railway Protection Force v. Rajendra Kumar Dubey, 2020 SCC OnLine SC 954, decided on 25.11.2020]

*Justice Indu Malhotra has penned this judgment 

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Indira Banerjee, JJ has held that the conclusion of the criminal trial does not conclude the disciplinary enquiry.

Background of the case

A police constable, who was tried and acquitted in a murder case, had challenged his dismissal from service after a disciplinary enquiry. The Division Bench of the Rajasthan High Court granted the respondent reinstatement in service with no back wages for the seventeen years that elapsed since his termination. The State had, hence, challenged the reinstatement before the Supreme Court.

  • On 13 August 2002, the respondent proceeded on leave and had to report back on duty on 16 August 2002. He failed to do so and eventually reported for work on 19 August 2020.
  • On 15 August 2002, one Daulat Singh lodged a written complaint in relation to the death of his brother Bhanwar Singh, caused by an accident with an unknown vehicle. However, it appeared during the course of the investigation that the death was homicidal. The respondent, along with 2 co-accused was arrested on 9 September 2002.
  • The respondent was tried for the offence of murder and was acquitted by the Sessions Court on 8 October 2003.
  • Departmental proceedings were also initiated against the respondent wherein the charges that were leveled against the respondent were:
    • Over-staying leave by a period of three days beyond the leave that was sanctioned;
    • Not seeking an extension of leave from the superior officer;
    • Involvement in the murder of Bhanwar Singh (the respondent was alleged to have run away from the scene of offence and tried to give it the colour of an accident);
    • Getting additional leave sanctioned by suppressing the correct reason on a misrepresentation to the superior officer; and
    • Conduct which has hurt the image of the police department.
  • In the finding of the Disciplinary enquiry it was noticed that the Court had not completely acquitted the said constable rather acquitted by giving him the benefit of doubt.

“From this it is clear that the Hon’ble Court has not acquitted charged constable in free form. Thus, I found said charge as completely proved due to which the image of police has blurred.”

What the Supreme Court said

On effect of acquittal in criminal trial on disciplinary proceedings

Though the acquittal brought finality to the question as to whether he had committed the offence of murder punishable under the Penal Code, however, the disciplinary enquiry stood on a broader footing. The disciplinary proceedings related not merely to the involvement of the respondent in the murder, but to the violation of service rules and the impact of his conduct on the image of the police force. Hence, the verdict of the criminal trial did not conclude the disciplinary enquiry.

Noticing that the disciplinary enquiry was not governed by proof beyond reasonable doubt or by the rules of evidence which governed the criminal trial, the Court said,

“True, even on the more relaxed standard which governs a disciplinary enquiry, evidence of the involvement of the respondent in a conspiracy involving the death of Bhanwar Singh would be difficult to prove. But there are circumstances emerging from the record of the disciplinary proceedings which bring legitimacy to the contention of the State that to reinstate such an employee back in service will erode the credibility of and public confidence in the image of the police force.”

On proof of misconduct in disciplinary proceedings

The standard of standard of proof in disciplinary proceedings is different from that in a criminal trial

In Suresh Pathrella v. Oriental Bank of Commerce, (2006) 10 SCC 572, a two judge Bench differentiated between the standard of proof in disciplinary proceedings and criminal trials in the following terms:

“ …the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities.”

Further, the involvement of a member of the police service in a heinous crime, if established, has a direct bearing on the confidence of society in the police and in this case, on his ability to serve as a member of the force. Such an individual is engaged by the State as a part of the machinery designed to preserve law and order. The State can legitimately assert that it is entitled to proceed against an employee in the position of the respondent in the exercise of its disciplinary jurisdiction, for a breach of the standard of conduct which is expected of a member of the state police service.

“Confidence of the State in the conduct and behaviour of persons it has appointed to the police is integral to its duty to maintain law and order.”

On judicial review over disciplinary matters

In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible.

Rule of restraint:

“The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer.”

Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy – deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service.

Interference when permissible

“The ultimate guide is the exercise of robust common sense without which the judges’ craft is in vain.”

At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct.

Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle i.e. the rule of restraint.

[State of Rajasthan v. Heem Singh, 2020 SCC OnLine SC 886, decided on 29.10.2020]

Case BriefsHigh Courts

Patna High Court: In a petition filed under Article 226 of the Constitution for issuance of a writ of certiorari, Birendra Kumar, J., dismissed the same finding no reason warranting interference.

The instant petition has been filed by the petitioner who pleads for the quashing of the order contained in Memo No. 3751 dated 10-10-2018 passed by the respondent 3, the Secretary of Bihar Sanskrit Shiksha Board in which the petitioner was put under suspicion and departmental proceedings were initiated against him.

The facts of the case are such that in a writ petition CWJC No. 10951 of 2015, this Court by order dated 27-06-2016 had directed CBI investigation in the matter of appointment of 73 Gramin Dak Sevaks during the period 2008-13 in Muzaffarpur Postal Division on the basis of fake and forged Madhyama Marksheet. R.C.’s were registered and during investigation, it came to light that one of the schools namely, Krishnadev Niranjan Dr Jai Narayan Sharma Sanskrit High School, Patahi, Muzaffarpur in a conspiracy, accepted forms of Madhyama examination for the period 2005-09 from the students and their fee was also collected an unauthorized manner. Subsequently, R.C. 1A of 2017 was registered on 18-01-2017. The S.P., C.B.I. vide his letter dated 04-04-2018 addressed to the Chairman of Bihar Sanskrit Shiksha Board (respondent 4) reported that during investigation, sufficient material came on the record to initiate a departmental proceeding for major punishment against three persons including the petitioner who were Assistants in Bihar Sanskrit Shiksha Board as they had allowed backdoor entry of students.

The primary ground for challenging the impugned order is that Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 is not applicable on the employees of the Sanskrit Shiksha Board nor there is any other Rule governing the service condition.

Other ground is that the disciplinary action has been taken by the competent authority solely based on the recommendation of the C.B.I. without any application of its own mind.

The petitioner has admitted that the Board has adopted the State Government’s Rules with respect to payment of gratuity, leave encashment and other benefits.

The Court observed that it’s not possible for an institution to run without any service rules. It is evident from the impugned order that Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 and Amendment Rules 2007 are applicable and under those Rules, action has been taken. Moreover, based on petitioner’s admittance, immunity cannot be claimed from the disciplinary proceeding rule.

For the second ground of non-application of mind by the competent authority, the Court thoroughly perused the impugned order and observed that it can’t be made out from the order that action has only been taken on the recommendation of the C.B.I. rather the competent authority has applied its mind while accepting the allegations which were brought on record during the investigation of the case by the C.B.I. for initiating the departmental proceeding.

Counsel for the petitioner, Bam Bahadur Jha has relied on the case of Bipin Bihari Singh v. State of Bihar, 2014 SCC OnLine Pat 5306. The Court questioned its relevance and applicability and found it unconvincing.

In view of the above, the petition has been dismissed by the court finding absolutely no reason to interfere in the impugned order.[Raja Jha v. State of Bihar, 2020 SCC OnLine Pat 1661, decided on 16-10-2020]

Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, SA Nazeer and Surya Kant, JJ has elaborately discussed the power of the Disciplinary Authority to impose punishment, applicability of rules of evidence and the scope of judicial review in such cases.

Punishment and plea of leniency

The Disciplinary Authority has wide discretion in imposing punishment for a proved delinquency, subject of course to principles of proportionality and fair play. Such requirements emanate from Article 14 itself, which prohibits State authorities from treating varying¬degrees of misdeeds with the same broad stroke. Determination of such proportionality is a function of not only the action or intention of the delinquent but must also factor the financial effect and societal implication of such misconduct.

“Unlike in criminal cases, in matters of disciplinary proceedings Courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the Court itself is shocked.”

Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for trivial misdeeds; but for grave offences there is a need to send a clear message of deterrence to the society. Charges such as corruption, misappropriation and gross indiscipline are prime examples of the latter category, and ought to be dealt with strictly.

Effect of criminal enquiry on disciplinary proceedings

It is both possible and common in disciplinary matters to establish charges against a delinquent official by preponderance of probabilities and consequently terminate his services. But the same set of evidence may not be sufficient to take away his liberty under our criminal law jurisprudence. Such distinction between standards of proof amongst civil and criminal litigation is deliberate, given the differences in stakes, the power imbalance between the parties and the social costs of an erroneous decision.

“Thus, in a disciplinary enquiry, strict rules of evidence and procedure of a criminal trial are inapplicable, like say, statements made before enquiry officers can be relied upon in certain instances.”

However, while strict rules of evidence are inapplicable to disciplinary proceedings, enquiry officers often put questions to witnesses in such proceedings in order to discover the truth. Indeed, it may be necessary to do such direct questioning in certain circumstances.

Scope of Judicial Review in Service Matters

The Constitutional Courts while exercising their powers of judicial review cannot assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice.

“… judicial review is not analogous to venturing into the merits of a case like an appellate authority.”

Further, where an appellate or reviewing Court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed in so far as it remains plausible or is not found ailing with perversity.

[Pravin Kumar v. Union of India, CIVIL APPEAL NO. 6270 of 2012 , decided on 12.09.2020]

COVID 19Hot Off The PressNews

It has been brought to the notice of the competent authority that the following officers, who were responsible to ensure strict compliance to the instructions issued by Chairperson, National Executive Committee, formed under Disaster Management Act, 2005 regarding containment of spread of COVID-19, have prima facie failed to do so.

These officers have failed to ensure public health and safety during the lockdown restrictions to combat COVID-19. Due to the serious lapse in performance of their duties, the competent authority has initiated disciplinary proceedings against the following officers:

  1. Additional Chief Secretary, Transport Department, GNCTD – Suspended with immediate effect.
  2. Additional Chief Secretary, Home and Land Buildings Departments, GNCTD – Show Cause Notice.
  3. Principal Secretary, Finance, GNCTD & Divisional Commissioner, GNCTD – Suspended with immediate effect.
  4. SDM Seelampur – Show Cause Notice.

Ministry of Home Affairs

[Press Release dt. 29-03-2020]

[Source: PIB]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of C.T. Ravikumar and V.G. Arun, JJ. dismissed a petition seeking quashing of disciplinary proceedings on the ground of inordinate delay. 

Disciplinary proceedings had been initiated against the petitioner, who was working as Additional Director Income Tax (Investigation), Mumbai, on the charge that he had abused his official position to leak the identity of a particular informant to the assessee, Mr Davinder Ahuja. The petitioner aggrieved by the decision of the Central Administrative Tribunal approached the Court with an application to quash the said proceedings on the grounds of inordinate delay and a second contention that the proceedings would amount to post-decisional hearing. 

The learned counsel for the petitioner, Mr Mohan Parasaran, relying on State of A.P. v. N. Radhakrishnan (1998) 4 SCC 154, submitted that there occurred an inordinate delay in the matter of initiation of disciplinary proceedings. The learned counsel further referred to imputations of misconduct and contended that it was indicative that the competent authority had already arrived at a conclusion on the guilt of the petitioner and hence no fair and impartial enquiry could be conducted thereafter. 

The learned counsel for the respondents, Mr Dinesh R. Shenoy, resisted the aforesaid contentions and submitted that the petitioner was only charge-sheeted and had not filed his written statement of defence, but instead approached the Tribunal. 

The Court after hearing the submissions of both the parties observed that the charge levelled against the petitioner was of a serious and grave nature and hence the authorities were justified in approaching the case with caution and patience. Thus the contention of the petitioner that there was an inordinate delay in initiation of proceedings was rejected by the Court. 

The Court upheld the Tribunal’s observation that the imputations incorporated in the said articles of charge only intended to explain the offending acts allegedly committed by the petitioner and to make the imputation specific and clear. In view thereof, the Court held that the verity of the imputations can only be proved or disproved at the final enquiry and merely because the imputations have been unhappily worded, it cannot be a reason to terminate the proceedings abruptly. It also observed that though the petitioner had attempted to establish the charges against him as baseless, merits of the case could only be established only after an appropriately conducted disciplinary proceeding. 

In view thereof, the Court did not find any compelling reason to interfere with the order passed by the Tribunal, and the petition was dismissed. The Court also directed the petitioner to cooperate with the authorities to complete the proceedings within six months. [Shantam Bose v. Union of India, OP (CAT) No. 205 of 2015, decided on 27-05-2019]

Case BriefsHigh Courts

Patna High Court: A Division Bench of Amreshwar Pratap Sahi and Anjana Mishra, JJ. dismissed an appeal for voluntary retirement filed against the respondent as the inquiry was started almost after 2 years of giving notice.

Respondent herein had tendered an application for voluntary retirement entitling her to be treated as a retired government servant She was proceeded against in departmental proceedings for her unauthorized absence. The point for consideration was whether the respondent could have proceeded for voluntary retirement from service in the disciplinary proceedings. Learned Single Judge held that since respondent’s voluntary retirement application was accepted in law, therefore the action taken by appellants was not in conformity with the rules. Aggrieved thereby, the present appeal was filed.

Counsels for the appellant, Binita Singh and Apurv Harsh, contended that as per Rule 74 (b)(i) of Bihar Service Code, 1952 a government servant may, after giving at least 3 months previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a government servant completes 30 years of qualifying service or attains 50 years of age. Thus, a government servant could get retired only if he gave atleast 3 months prior notice to the concerned authority. 

Learned counsels for the respondent P.K. Shahi and Sanjeev Kumar Mishra contended that in view of the law laid down in Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441 the application moved for voluntary retirement was in order and the same had rightly been treated to be a valid application by the learned Single Judge. Thus, the entire disciplinary proceedings were invalid and consequently quashing of the punishment order was justified.

The Court noted that the application for voluntary retirement had been filed by the respondent before the concerned authority, but no orders were passed thereon. Once the application for voluntary retirement had been moved, then merely because the period of three months had not been mentioned in the said application, the same would not render it invalid ipso facto and it would mature after the expiry of three months. Inquiry against the respondent was commenced almost after two years after the maturity of her application, but no explanation was provided for the said delay.

Reliance was placed on the case of Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441 where it was held that consent of government is not necessary to give legal effect to voluntary retirement. In view thereof, the appeal was dismissed. [State of Bihar v. Swarn Lata Sinha, 2019 SCC OnLine Pat 852, decided on 07-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J. contemplated a writ petition under Article 226 of the Constitution of India, where the petition sought the total salary from the date of suspension i.e. 03-12-2016 to 28-06-2018 to be paid along with quashing of an order passed earlier.

The counsel for the petitioner submitted that petitioner worked as Panchayat Secretary in Gram Panchayat Khatakiya, and was placed under suspension by an order passed in 2016 and since the charge sheet was not issued within the period of 45/90 days of the suspension order therefore by a subsequent order the suspension of the petitioner was revoked. However, full salary for the period of suspension had not been paid to the petitioner although he had been paid subsistence allowance. Subsequently, a charge sheet was served in 2017 a penalty of stoppage of one increment for a period of one year without cumulative effect was imposed and it had been held that the period of suspension shall be treated as “No work no pay” and the petitioner shall not be entitled to any other salary.

Against the order passed by the disciplinary authority, the petitioner had  filed an appeal before the Commissioner, Gwalior Division, which was returned back with a direction to the petitioner to present the same before the competent authority and accordingly the petitioner had filed an appeal before the Commissioner, Panchayat Raj, Madhya Pradesh which was  pending. It was submitted that as the appeal was pending, therefore, the petitioner was suffering from financial loss and under these circumstances, the appellate authority/Respondent 2 may be directed to decide the appeal as early as possible without any delay.

It was directed by the Court to consider the appeal of the petitioner as early as possible because of the losses he was suffering from.[Deewan Singh Kushwah v. State of M.P, 2019 SCC OnLine MP 1274, decided on 01-04-2019]

Case BriefsSupreme Court

Supreme Court: The bench of L Nageswara Rao and MR Shah, JJ held that a man, by virtue of the disciplinary proceedings being dropped, the Appellant becomes entitled to claim full salary for the period from the date of his suspension till the date of closure of the departmental inquiry.

Factual Background

  • The Court was hearing the case of a Sorting Assistant in Railway Mail Service against whom disciplinary proceedings were initiated on the allegations of involvement in forged payments of high value money orders.
  • He was suspended on 23.10.1979 and an FIR under Sections 409, 420 and 467 IPC was filed.
  • The order of suspension was revoked on 21.10.1987 pursuant to which he joined duty and worked till 28.02.1997, when he was dismissed from service in view of his conviction under Section 409, 467 and 420 IPC. He was sentenced to imprisonment for three years.
  • His appeal against conviction was allowed and he was acquitted of the charges for offences under Section 409, 420 and 467 IPC.
  • He claimed that he should be entitled to full back wages from the date of the order of his acquittal i.e. 31.08.2001 till the date of his reinstatement i.e. 20.01.2003.

Ruling

After perusing various judgments, the Court said that the department would become liable for back wages in the event of a finding that the initiation of the criminal proceedings was mala fide or with vexatious intent. It, however, clarified:

“If an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employer cannot be mulcted with full back wages on the acquittal of the person by a criminal Court, unless it is found that the prosecution is malicious.”

Noticing that it was the Appellant who was seeking postponement of the departmental inquiry in view of the pendency of criminal case and that the order of suspension was in contemplation of disciplinary proceedings, the Court said:

“the Respondents took four years to reinstate him by revoking his suspension. The order of suspension dated 23.10.1979 came to an end on 21.03.1983 which is the date on which disciplinary proceedings were dropped. The Appellant ought to have been reinstated immediately thereafter unless a fresh order was passed, placing him under suspension during the pendency of the criminal trial which did not happen.”

The Court, hence, held that the Appellant is entitled for full wages from 23.10.1979 to 21.10.1987 after adjustment of the amounts already paid towards subsistence allowance.

[Raj Narain v. Union of India, 2019 SCC OnLine SC 452, decided on 01.04.2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Madhuresh Prasad, J. dismissed a civil writ petition filed by an employee against whom disciplinary proceedings were initiated but no final order had been given in the matter.

The present writ application had been filed challenging the entire proceedings arising out of departmental proceedings which was initiated against the petitioner for certain charges communicated to him under Praptra ‘K’ during the period when he was posted as Circle Officer.

The Court noted that the petitioner had approached it without there being any order of punishment against him. Disciplinary proceedings had been initiated against the petitioner and the enquiry report had been submitted after the conclusion of the proceedings before the Enquiry Officer. Since the final decision was yet to be taken by the disciplinary authorities, thereafter only could the petitioner be aggrieved by the outcome of proceedings.

In view of the above, it was held that at present there was no occasion for this Court to exercise any jurisdiction in favour of the petitioner.[Bishwa Nath Prasad v. State of Bihar, 2019 SCC OnLine Pat 36, Order dated 10-01-2019]

Case BriefsHigh Courts

Gauhati High Court: The Bench comprising of Achintya Malla Bujor Barua, J. while pronouncing an order in regard to the issue of suspension order passed against an employee stated the necessity of the memorandum of charge/charge-sheet for initiating a disciplinary proceeding.

The facts of the case state that, the petitioner was an assistant professor and was placed under suspension for the reason as provided in the communication that he was arrested for a case and was in custody for a period of more than 48 hours.

For the above stated premise, the Court had placed a query to the counsel of governing body of the college that “whether any memorandum of charge/charge-sheet had been issued and served on the petitioner as regards any proposed disciplinary action that may be taken” for which the answer was given that no such memorandum of charge/charge-sheet had been issued.

Court stated that a communication rejecting the claim of salary cannot be construed to be a memorandum of charge/charge-sheet. Further Court opined that, the information being provided to a suspended employee for which he is placed under suspension cannot substitute the memorandum of charge/charge-sheet for initiating a disciplinary proceeding.

Reliance by the petitioner’s counsel was placed on the decision of the Supreme Court in Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291 in which it was held that: “the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Charge sheet is not served on the delinquent officer/employee”.

Thus, the High Court in the present case taking into consideration the decision of the Supreme Court as stated above held that as no memorandum of charge/charge-sheet had been submitted since 29-08-2017, the period of 3 months elapsed which makes the order of suspension unsustainable. [Abdul Wahid v. State of Assam, 2018 SCC OnLine Gau 1957, dated 15-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of R.M. Savant and Nitin W. Sambre, JJ. allowed a petition filed by a suspended worker seeking payment of suspension allowance during the pendency of disciplinary enquiry against him.

The petitioner was registered with the respondent Board. In June 2018, he was served a show cause notice for initiating departmental proceedings against him. Subsequently, he was suspended from service. The petitioner requested the respondent for payment of suspension allowance which was not granted. Aggrieved thereby, the petitioner filed the instant petition.

The High Court perused the entire scheme of the service conditions and the statute under which the petitioner’s service was governed. It was observed that the object behind payment of suspension allowance is that the suspended employee is able to keep his body and soul together during his suspension period and is able to sustain himself. It was held that once there is a power to suspend vested in an employer, then the necessary concomitant is that the employer has to pay the suspension allowance to the employee. Furthermore, it was observed as well settled that suspension allowance is a part of “wages” defined under Section 2(vi) of the Payment of Wages Act, 1936. In light of the aforesaid, the petition was allowed and the respondent was directed to pay suspension allowance to the petitioner at a rate to be fixed by the Board. [Tanaji Genba Pawge v. Mumbai Vegetable Market Unprotected Workers Board,2018 SCC OnLine Bom 4140, dated 30-10-2018]

Case BriefsHigh Courts

Hyderabad High Court: A Division Bench comprising of Thottathil B. Radhakrishnan, CJ. and Ramesh Ranganathan, J., declared that to be transferred, even while covered by disciplinary proceedings, was not a matter of choice to be made by the government servant concerned.

The petitioner who was a Motor Vehicles Inspector had challenged the rejection of his request for inter-State transfer.  He was rejected the transfer owing to the pending disciplinary proceedings against him, which he claimed to be in violation of Articles 14 and 16 of the Constitution of India. On the contrary, the respondent claimed that deputation could not be allowed to employees against whom any disciplinary proceedings were pending as this right rests upon the employer for fundamental reasons. 

The High Court observed that the employer, who has initiated disciplinary proceedings, should have control over the employment of the delinquent concerned for continuing the disciplinary proceedings.  This is the fundamental principle on which disciplinary proceedings are permitted to continue, although regulated, even after retirement; and for post retiral benefits and post retiral purposes of certain categories as are contemplated to apply in service jurisprudence. In the light of the aforementioned, the Court stated that the employee cannot claim a legal entitlement over the service when undergoing the said proceedings and any decision to grant inter-State transfer to an employee covered by disciplinary proceedings could be made, only at the volition of the employer. Accordingly, the petition stood dismissed.[P. Ramesh Babu v. State of A.P.,2018 SCC OnLine Hyd 181, order dated 09-07-2018]  

Case BriefsHigh Courts

Hyderabad High Court: A Division Bench comprising of Thottathil B. Radhakrishnan, CJ. and Ramesh Ranganathan, J., dismissed a writ petition filed by a Motor Vehicle Inspector challenging the rejection of his request for inter-State transfer from Telangana to Andhra Pradesh.

The petitioner, following a surprise check in his office, stood subjected to disciplinary proceedings. His request for transfer to State of Andhra Pradesh was rejected by Government of Telangana which meant that he would have to continue to be in the employment of the same employer. The petitioner challenged this rejection.

The High Court observed that the employer, who has initiated the disciplinary proceedings, should have control over the employment of the delinquent concerned for continuing such proceedings. This is the fundamental principle on which disciplinary proceedings are permitted to continue. There is no legal entitlement for any employee to insist that, even while facing disciplinary proceedings, the employer could be compelled to provide inter-State transfer, thereby changing the employer and taking the employee out of the clutches of disciplinary jurisdiction of the present employer. To be transferred, even while covered by disciplinary proceedings, is not a matter of choice to be made by the government servant concerned. Holding thus, the High Court dismissed the petition. [P. Ramesh Babu v. State of Telangana, 2018 SCC OnLine Hyd 181, dated 09-07-2018]

 

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): CIC has rejected an appeal where the appellant requested the CPIO of Sarva Haryana Gramin Bank, Rohtak, to disclose to him the steps taken and details of proceedings in a complaint he had filed against the bank’s manager.

The appellant requested for the following details under the RTI Act:

i. Whether enquiry has been initiated on the said complaint,

ii. Copy of order appointing an enquiry officer,

iii. Details of the report submitted by the enquiry officer.

The appellant submitted that the response provided to him by the CPIO was not satisfactory as he had asked not just for the report of the enquiry officer, which was provided to him, but also documents pertaining to the course of the enquiry, including depositions made by customers about the conduct of the manager to the enquiry officer.

The CPIO contended that the statements by the customers and villagers consisted of personal information relating to a third party and had hence been accordingly denied under Section 8(1)(j) of the RTI Act, which reads:

“Notwithstanding anything contained in this act , there shall be no obligation to give any citizen information which relates to personal information the disclosure of which has no relationship to any public activity or interest , or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.”

The Commission relied on the Supreme Court’s judgment in Girish Ramchandra Deshpande v. CIC, (2013) 1 SCC 212 where the Court held that details recording proceedings of disciplinary enquiries were personal information, outside the ambit of the RTI Act as follows:

“The performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual.”

Hence the Commission was of the view that the information solicited by the appellant was of a private nature, protected under Section 8(1)(j) of the RTI Act and disclosing the same would not cause any public good, hence the appeal was dismissed. [R.N. Kapur v. CPIO, Sarva Haryana Gramin Bank, Head Office, Rohtak, 2018 SCC OnLine CIC 310, decided on 17-05-2018]

Case BriefsHigh Courts

Allahabad High Court: A Single-Judge Bench comprising of Hon’ble Siddharth, J. quashed the impugned termination order against the petitioner.

As per the facts of the case, the petitioner was alleged to have defalcated a sum of Rs. 26, 40,937.93 and based on the preliminary enquiry, he was found guilty of the stated charge. Two subsequent FIRs under Sections 3 and 7 of the Essential Commodities Act and under Section 419 IPC were filed against the petitioner. The petitioner was subsequently suspended from service.

Respondents have filed that the petitioner embezzled a huge amount for which he was asked for an explanation. Further, the petitioner was sent a notice in regard to no explanation from his side. An enquiry report based on the records found the petitioner guilty of defalcation of more than Rs. 26 lakhs. The petitioner was issued a letter in which it was stated that his services are governed by Model Service Regulations for the employees of U.P Consumer Cooperative Store. Petitioner was also granted personal hearing and the disciplinary proceedings were conducted in accordance with the rules.

Further, it has been argued that the petitioner was not afforded any opportunity of defending his case which was in violation of Regulation 77(i)(a) of the Regulations under which he was governed. Secondly, before passing of the termination order approval from the board of directors was not taken which was a violation of Regulation 76(b) of the above-stated regulations. Thirdly, he was not granted personal hearing and finally the impugned termination order was passed.

Upon perusal of Regulation 77 it was found that the entire disciplinary enquiry was against the said regulation and also against the principles of natural justice. Therefore, it was held by the Court that, the disciplinary proceedings against the petitioner were absolutely illegal and against the express provisions of Regulation 77 and further no material was brought on record regarding the status of criminal cases. The impugned termination order against the petitioner was quashed. [Dhodha Singh v. State of U.P, 2018 SCC OnLine All 448, delivered on 24-04-2018]

Case BriefsSupreme Court

Supreme Court: Dealing with the question as to whether after transfer of a disciplinary proceeding, as per the mandate enshrined under Section 36B(1) of the Advocates Act, 1961 to the Bar Council of India (BCI) from the State Bar Council, can the BCI, instead of enquiring into the complaint and adjudicating thereon, send it back to the State Bar Council with the direction to decide the controversy within a stipulated time, the Court held that the legislature never intended a complaint made against an Advocate either from the perspective of the complainant or from the delinquent to be transferred to BCI, again to be sent back. It was held that BCI, while exercising original jurisdiction on transfer of a complaint, cannot exercise the appellate jurisdiction.

The Court, however, took note of the fact that on many occasions disciplinary authority of the State Bar Council does not dispose of the complaint within the stipulated period, as a consequence of which the proceeding stands transferred to the BCI. Looking down upon such practice, the Court said that once a complaint is made by a litigant, it has to follow a definite procedure and is required to be dealt with as per the command of the Act to conclude the disciplinary proceeding within a period of one year from the date of receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council. Not to do something what one is required to do, tantamount to irresponsibility and the prestige of an institution or a statutory body inheres in carrying out the responsibility.

The bench of Dipak Misra and A.M. Khanwilkar, JJ, hence, directed the State Bar Councils to take a periodical stock of cases in each meeting with regard to the progress of the Disciplinary Committee, find out the cause of delay and guide themselves to act with expediency so that the Council, as a statutory body, does its duty as commanded under the Act. [Ajitsinh Arjunsinh Gohil v. Bar Council of Gujarat, 2017 SCC OnLine SC 351, decided on 06.04.2017]