Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J. heard a writ petition that sought to quash the order passed by the respondent whereby the petitioner had been inflicted with the punishment of stoppage of annual increment for six months in Departmental Proceeding.

The petitioner was a constable and was accused of coercion and it was alleged that he forcibly took a thumb impression on a blank paper. He was also accused of several offences under different sections of Penal Code, 1860. Pursuant to that charge, Enquiry Officer was appointed and departmental proceeding was initiated against the petitioner. The charges against the petitioner were proved and an enquiry report was not supplied to him in the first instance but along with the second show cause notice.

Learned counsel for petitioner, D.K. Dubey, contended that the lady who made the accusation told the Conducting Officer that she had not given any application in the hands of the petitioner nor did she know him. Furthermore, he argued that she had not made any complaint against the petitioner. Counsel, thus, pleaded that if there were no accusations against the petitioner, then the order was fit to be quashed.

Learned counsel for respondent, Rajesh Kumar Singh, submitted that impression was taken on a blank paper by the accused and she had stated that in the complaint petition, no explanation was given to her for the same. Also, it came later to her knowledge that no complaint was lodged against the petitioner. The counsel, further, submitted that the statement given by the lady that no complaint was filed against the accused was made under coercion.

The Court observed that the enquiry officer took into account the two complaints which were brought on record in the writ petition and the enquiry officer came to a conclusion that usage of coercion to obtain the statement in favor of the petitioner could not be ruled out and therefore, the petitioner was held guilty. The Court remarked that there was no illegality in the inquiry report and punishment order was in accordance with the law. Moreover, the Court remarked that when an employee was dismissed or removed from service and the inquiry was set aside because the report is not furnished to him, the non-furnishing of the report would cause prejudice to him or might not affect the nature of punishment at all. However, in the instant case, the petitioner was not able to highlight what prejudice had been caused to him due to non-supply of the enquiry report. Hence, the writ petition was dismissed.[Amiruddin v. State of Jharkhand, Writ Petition (S) No. 3142 of 2014, decided on 20-06-2019]

Case BriefsSupreme Court

Supreme Court: Stating that the essential qualifications for appointment to a post are for the employer to decide, the bench of Arun Mishra and Navin Sinha, JJ said,

“The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re­writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review.”

The Court further held that if the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law.

“In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”

The Court was hearing the appeal filed against the order of the High Court holding that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors under separate advertisements dated 04.01.2012 and 31.03.2015.

It was submitted before the Court that the academic qualifications coupled with the requisite years of practical experience in the manufacturing and testing of drugs were essential qualifications for appointment. Research experience in a research and development laboratory was a desirable qualification which may have entitled such a person to a preference only. The latter experience could not be equated with and considered to be at par with the essential eligibility to be considered for appointment. It was argued that the High Court erred in misreading the advertisement to redefine the desirable qualification as an essential qualification by itself.

The Court said that the plain reading of the advertisement provides that a degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University coupled with the requisite years of experience thereafter in manufacturing or testing of drugs were essential qualifications. Preference could be given to those possessing the additional desirable qualification of research experience in the synthesis and testing of drugs in a research laboratory.

The Court also said that

“an expert committee may have been constituted and which examined the documents before calling the candidates for interview cannot operate as an estoppel against the clear terms of the advertisement to render an ineligible candidate eligible for appointment.”

[Maharashtra Public Service Commission v. Sandeep Shriram Warade, 2019 SCC OnLine SC 652, decided on 03.05.2019]

Case BriefsSupreme Court

Supreme Court: The Bench of Abhay Manohar Sapre and Indu Malhotra, JJ has held that pendency of any writ petition by itself does not affect the constitutionality of a Statute. It said:

“It is only when the Court declares a Statute as being ultra vires the provisions of the Constitution then the question may arise to consider its effect on the rights of the parties and that would always depend upon the declaration rendered by the Court and the directions given in that case.”

Background of the case:

“Keeping in view the amendment made in the definition of Section 2(e), which as stated above was not brought to the notice of the Bench, this issue was not considered though had relevance for   deciding the question involved in the appeal. It is for this reason, we prima facie find error in the judgment and, therefore, are inclined to stay the operation of our judgment.”

What Court said in Ahmadabad Pvt. Primary Teachers Association verdict:

“The legislature was alive to various kinds of definitions of the word “employee” contained in various previous labour enactments when the Act was passed in 1972. If it intended to cover in the definition of “employee” all kinds of employees, it could have as well used such wide language as is contained in Section 2(f) of the Employees’ Provident Funds Act, 1952 which defines “employee” to mean “any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment …”. Non-use of such wide language in the definition of “employee” in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition.”

Ruling:

Hence, after noticing that though the definition was amended in 2009 by Act No.47 of 2009, yet the same was given retrospective effect from 03.04.1997 so as to bring the amended definition on Statute Book, from 03.04.1997, the Court held that the effect of the amendment made in the Payment of Gratuity Act vide Amending Act No. 47 of 2009 on 31.12.2009 was two­fold.

  • the law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association was no longer applicable against the teachers, as if not rendered, and
  • the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 03.04.1997.

When the counsel for the Institution argued that the constitutional validity of Amending Act No. 47 of 2009 was under challenge in this Court in a writ petition, which is pending, the Court rejected the argument and said that pendency of any writ petition by itself does not affect the constitutionality of a Statute.

[Birla Institute of Technology v. State of Jharkhand, 2019 SCC OnLine SC 340, decided on 07.03..2019]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Anil Kumar Upadhyay, J. seized of a civil writ petition pertaining to effective date for grant of promotion benefits, ruled that an authority that delays decision on promotion benefits could not rely on a subsequent circular to deny promotion benefits to the petitioner.

The grievance of the petitioner in the instant writ petition revolves around the effective date for grant of promotion benefits to him. Learned counsels for the petitioner – Mr Sharda Nand Mishra and Mr Dhananjay Kumar Gupta – submitted that the petitioner had completed 24 years of service on 11-04-2009, but he was granted benefit of promotion with effect from 04-03-2014.

Learned counsel appearing on behalf of the respondent – Mr Shilpi Keshri – submitted that in terms of an amended circular, petitioner was entitled to benefits with effect from 04-03-2014.

The Court opined that as per existing norms, petitioner was entitled to grant of promotion on completion of 24 years on 11-04-2009. It was due to lapse on respondent’s part that decision in that regard was not taken timely. Having defaulted in timely disposal of their duties, respondent could not deny benefit to petitioner on the ground that a new circular had come into place in the meantime. It was held that the petitioner was entitled to promotion benefits effective from 04-03- 2014.

The petition was allowed and respondent was directed to take to take necessary decision for grant of all consequential benefit to petitioner at the earliest, preferably within a maximum period of four months from the date of receipt of a copy of present order. [Vivekanand Singh v. State of Bihar,2018 SCC OnLine Pat 2157, decided on 03-12-2018]

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

Calcutta High Court: A Single Judge Bench comprising of Sambuddha Chakrabarti, J. allowed a writ petition which sought directions to the respondents to release post retiral benefits of the petitioner.

The petitioner was employed at the post of Director (Finance) in National Jute Manufacturers’ Corpn. Ltd. He sought for issuance of a writ in nature of mandamus commanding the respondents to release post retiral benefits including gratuity, leave encashment, maximum allowance and perks as provided for in the conditions of employment. The question for consideration before the High Court was whether NJMC could withhold post retiral benefits of the petitioner on the ground that after his retirement, certain alleged irregularities have been detected.

The High Court was of the opinion that a departmental enquiry is initiated by issuing a formal chargesheet against a delinquent employee. NJMC may have had a preliminary enquiry which was in nature of an informal enquiry but that was no legal basis to proceed against an employee. Moreover, now the petitioner had retired and it was observed as a settled principle of law that no departmental proceeding can be initiated against a former employee unless the relevant service rules provide for the same. The present was a case where neither NJMC Service Regulations, 1982 nor NJMC (Conduct, Discipline, and Appeal) Rules, 1982 contain any provision for initiation of any departmental proceeding against an employee after his retirement. Thus, no departmental proceeding could be initiated against the petitioner now that he had retired. In such case, the High Court held that respondents had no right to sit over retiral dues not released to the petitioner. They were accordingly directed to release the dues within six weeks with interest. The petition was allowed with costs of Rs 10,000 imposed on NJMC. [Sukanta Kumar Mondal v. National Jute Manufacturers’ Corp. Ltd.,2018 SCC OnLine Cal 6987, dated 27-09-2018]

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 BriefsHigh Courts

Madhya Pradesh High Court: A Single Judge Bench comprising of Sanjay Dwivedi, J., allowed a petition filed by an employee against the decision of the employer whereby the order of his pay upgradation was withdrawn.

The petitioner was aggrieved by the decision of his employer to withdraw the benefits of pay upgradation. The decision was taken by the employer under Clause 13 of the concerned circular, whereby if an employee refuses to accept the promotion along with pay upgradation, then in such a case, the benefits of his pay upgradation are also to be withdrawn. The petitioner challenged the said decision wherein his pay scale was revised, reduced and refixed at a lower grade.

The High Court considered the submissions made on behalf of the parties, and referring to earlier decisions of division bench on the same issue, held that such decision was unsustainable. It was observed, merely because an employee has refused to accept the promotion, that does not deprive him to enjoy the benefit of upgradation of pay granted to him for completing certain period in service. The analogy as contained in Clause 13, mentioned above, was disapproved of by the Court. Thus, holding the decision to be unsustainable, it was set aside. The Court ordered to quash any recovery, if made, from the employee in furtherance of the said decision. The petition was accordingly disposed of. [Raspal Singh Dangi v. State of M.P.,2018 SCC OnLine MP 401, dated 25-06-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of S.C. Gupte, J. dismissed a writ petition which was filed challenging the forfeiture of payment of gratuity due to the petitioner.

The petitioner worked as a Branch Manager with the respondent Bank. He was charge-sheeted for misconduct alleging misappropriation of funds. It was alleged that a total sum of Rs. 30,000 was misappropriated by the petitioner. Accordingly, the services of the petitioner were terminated. Subsequently, the petitioner filed an application for payment of gratuity under Section 4 of Payment of Gratuity Act, 1972. Meanwhile, the respondent Bank forfeited the gratuity payable to the petitioner under Section 4(6)(b)(ii) of the Act. Petitioner’s application for payment of gratuity, mentioned hereinabove was allowed by the Controlling Authority, which order was reversed by the Appellate Authority on an appeal by the respondent Bank. Petitioner challenged the order of the Appellate Authority in the instant petition. His main contention was that for invoking Section 4(6)(b)(ii) for forfeiting gratuity, conviction of the concerned employee for any offence for the time being in force is a condition precedent.

On perusal of the said section, the High Court was of the view that contention of the petitioner was liable to be rejected. The Court opined that Section 4, read as a whole, does not lend itself any such construction as put forth by the petitioner. There was no basis for claiming that the act referred to clause (b)(ii) of the section, namely, “act which constitutes an offence involving moral turpitude”, must be proved in a criminal court of competent jurisdiction. Referring to a few decisions of the Supreme Court and other High Courts, the Hon’ble Judge held that conviction for an offence involving moral turpitude was not a condition precedent to forfeit the amount of gratuity under Section 4(6)(b)(ii). Holding thus, the Court held that the impugned order passed by the Appellate Authority does not suffer from any illegality, and thus no interference with the impugned order was called for. Accordingly, the petition was dismissed. [Laxman Balu Deualkar v. Kolhapur District Central Coop. Bank Ltd.,2018 SCC OnLine Bom 1284, decided on 14-6-2018]