Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., affirmed impugned judgment of the Gauhati High Court whereby the High Court had reversed the findings of the Single judge who had interfered with the order of disciplinary authority and remanded the matter for re-consideration.

The Court held that punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him. The Court opined,

“…merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind.”


The petitioner-appellant was serving as a Head Constable (Ministerial) in Sashastra Seema Bal (SSB) when he was charged with violation of good order and discipline under Section 43 of the Shashastra Seema Bal Act, 2007, for having entered the Mahila Barrack of the Battalion at around 00:15 hours. Resultantly, the petitioner-appellant was charged for compromising the security of the occupants of the Mahila Barrack. The Summary Force Court (SFC) found him guilty of the charges and initially ordered for his dismissal but subsequently, converted the pentaly to ‘removal from service’.

The Single Judge interfered with the order of punishment imposed by the disciplinary authority of ‘removal from service’ solely on the ground that female constable, Rupasi Barman, who allowed the entry of the delinquent during her sentry duty, was inflicted a lesser penalty – forfeiture of two years seniority in the rank of constable and also forfeiture of two years’ service for the purpose of promotion only. Whereas the petitioner-appellant was inflicted the punishment of ‘removal from service’, which was disproportionate.

Analysis and Findings  

The Court noted that the petitioner-appellant was imposed the penalty of ‘removal from service’ after following the procedure prescribed under the SSB Rules. Therefore, opining that the nature of allegations against the petitioner-appellant was grave in nature, the Court remarked,

“He entered the Mahila Barrack in the midnight at around 00:15 hours, may be to meet his alleged friend Rupasi Barman, but such an indisciplined conduct leading to compromising the security of the occupants of the Mahila Barrack cannot be tolerated.”

Relying on the decision in Union of India v. Diler Singh, (2016) 13 SCC 71, the Court held that a member of the disciplined force is expected to follow the rules, have control over his mind and passion, guard his instincts and feelings and not allow his feelings to fly in a fancy. Observing that the nature of misconduct proved against the petitioner-appellant was unpardonable, the Court opined that when the disciplinary authority considered it appropriate to punish him with the penalty of ‘removal from service’, which was confirmed by the appellate authority, thereafter it was not open for the Single Judge to interfere with the order of punishment. The Court noted,

“The misconduct committed by the delinquent official, being a male Head Constable cannot be equated with the misconduct committed by the female constable.”


In the backdrop of above, the Court opined,

“The misconduct of entering the Mahila Barrack of the Battalion in the midnight is more serious when committed by a male Head Constable. Therefore, the learned Single Judge committed a grave error in comparing the case of female constable with that of the appellant – delinquent, male Head Constable.”

Hence, the appeal was dismissed and the order of the Division Bench of the High Court was upheld.

[Anil Kumar Upadhyay v. Director General, SSB, 2022 SCC OnLine SC 478, decided on 20-04-2022]

*Judgment by: Justice M.R. Shah

Appearance by:

For the Petitioner-appellant: Ankita Patnaik, Advocate

For the Respondent: Vaishali Verma, Advocate

Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In a case where a Judge was accused of misconduct, the bench of Dr. DY Chandrachud and Bela M. Trivedi, JJ has held that showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration.

“It is often said that “the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion.”

The appellant in the case at hand had joined the Uttar Pradesh Judicial Services in the year 1978 and sought voluntary retirement from the said services in September 2003. Immediately after the retirement, appellant joined as a Judicial Member, Central Administrative Tribunal, Mumbai Bench, Mumbai.

On 19.07.2005, the appellant was informed that the Allahabad High Court had initiated a departmental enquiry against him. There were twelve charges levelled against the appellant in the said chargesheet. It was alleged against that the appellant, while posted as the 11th Additional District Judge, Agra during the period from 23.05.2001 to 19.05.2003, had decided a batch of matters under the Land Acquisition Act, 1894 and had awarded enhanced compensation which was multiple times more than the investments made by the subsequent purchasers of the acquired lands; that such subsequent purchasers had no right to claim compensation for the acquired lands; that the appellant had determined the compensation in terms of square yards and not in terms of bighas, and had awarded such compensation in flagrant violation of the cardinal principles of law and equity and against all judicial norms and propriety, with a view to unduly favour such subsequent purchasers. It was therefore alleged that the appellant had failed to maintain absolute integrity and complete devotion to duty, and thereby had committed a misconduct within the meaning of Rule-3 of U.P. Govt. Servants Conduct Rules, 1956. Once charge levelled against the appellant pertained to an undue favour shown to the son of a Counsel named Shri KC Jain, by exorbitantly enhancing the compensation in his favour.

The Supreme Court observed that when the Enquiry proceedings have been found to have been conducted in proper and legal manner, and when the High Court on administrative side as well as on judicial side, has accepted the findings recorded by the Enquiry Officer qua the charge levelled against the appellant as “proved”, holding him guilty of having committed “misconduct”, it was not expected to sit as an appellate authority and revaluate the adequacy or reliability of the evidence adduced before the Enquiry Officer.

The Court observed,

“There was enough evidence and material to show that the appellant had misconducted himself while discharging his duties as a judicial officer, and had passed the judicial orders in utter disregard of the specific provisions of law, to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive. Under the circumstances, the High Court was perfectly justified in exercising its supervisory jurisdiction under Article 235 of the Constitution.”

[Muzaffar Hussain v. State of Uttar Pradesh, 2022 SCC OnLine SC 567, decided on 06.05.2022]

*Judgment by: Justice Bela M. Trivedi


For appellant: Senior Advocate Pradeep Kant

For respondent no. 2: Advocate Charu Ambwani

Case BriefsSupreme Court

Supreme Court: Harmoniously interpreting Section 2 (9), Sections 39A and 56 of the Maharashtra Municipal Corporations Act, 1949 (MMC Act), the bench of L. Nageswar Rao and BR Gavai*, JJ has held that the Commissioner of the Municipal Corporation will have the power to suspend or initiate departmental proceedings against an Additional Municipal Commissioner (AMC), who is an officer, superior in rank to the Assistant Commissioner. However, in case of suspension of such an officer, the only requirement would be to report to the Corporation, with reasons thereof, and if such a suspension is not confirmed by the Corporation within a period of six months from the date of such suspension, the same shall come to an end.

Stating that any other interpretation would lead to absurdity and anomaly, and therefore will have to be avoided, the bench observed that

“… the intention of the legislature would not have been to lead to such an absurd and anomalous situation. A legislative intent cannot be to leave an employee scot-free though he has indulged into serious misconduct.”

Relevant Provisions

  • In the definition of the “Commissioner” under Section 2(9), though an acting Commissioner appointed under Section 39 of the MMC Act has been included, an AMC appointed under Section 39A of the MMC Act has not been included.
  • Under Section 39A of the MMC Act, though the AMC will exercise all or any of the powers and perform all or any of the duties and functions of the Commissioner, the same shall be subject to the control of the Commissioner. No doubt, that the AMC would be subject to the same liabilities, restrictions and terms and conditions of service, to which the Commissioner of the Corporation is subjected. However, the legislative intent is clear that the powers to be exercised by AMCs would be subject to the control of the Commissioner.
  • Under Section 56(1), a competent authority is entitled to impose any of the penalties specified in Section 56 (2) on a municipal officer or servant if such authority is satisfied that such officer or servant is guilty of breach of departmental rules or discipline or of carelessness, neglect of duty or other misconduct or is incompetent.
    1. Clause (a) of the proviso to Section 56 (1), however, provides that no municipal officer or servant holding the post equivalent to or higher in rank than the post of the Assistant Commissioner, shall be dismissed by the Commissioner without the previous approval of the Corporation.
    2. Clause (b) of the proviso to Section 56(1) enables the Commissioner to suspend any officer or servant, whether appointed by the Corporation or any other competent authority, except Transport Manager being a Government Officer on deputation, pending an order of the Corporation. It further provides that when the officer suspended is a Transport Manager or an officer appointed under Section 45 of the MMC Act, such suspension with reasons thereof, shall, forthwith be reported by the Commissioner to the Corporation. It further provides that such a suspension shall come to an end if not confirmed by the Corporation within a period of six months from the date of such suspension.
  • Whereas, the Commissioner is empowered to suspend any officer or servant, whether appointed by the Corporation or any other competent authority, in case of a Transport Manager being a Government Officer on deputation or any officer appointed under Section 45 of the 21 MMC Act, the Commissioner is required to report such a suspension with reasons thereof, to the Corporation. It further provides that such suspension shall come to an end if not confirmed by the Corporation within a period of six months from the date of such suspension.


On a conjoint reading of the aforesaid provisions of the MMC Act, the Court observed that though a competent authority may impose any of the penalties on a municipal officer or servant, no municipal officer or servant holding the post equivalent to or higher in rank than the post of an Assistant Commissioner, shall be dismissed by the Commissioner without the previous approval of the Corporation.

The Court explained that the legislature has created two classes of the municipal officers and servants.  One class is of the municipal officers and servants, other than the ones holding the post equivalent to or higher in rank than the post of an Assistant Commissioner. In this category, a competent authority may   impose the penalties as provided under the provisions of the MMC Act. The other class of municipal officers is of the persons holding the post equivalent to or higher in rank than the post of Assistant Commissioner. The officers in such a class can be dismissed only by the Commissioner and that too with the previous approval of the Corporation.

Observing that the term “post equivalent to or higher in rank than the post of Assistant Commissioner”   cannot be construed in a narrow compass, the Court held that clause (a) of subsection (1) of Section 56 of the MMC Act would also include the post of AMC.

The Court disagreed with the finding of the Bombay High Court that in view of Section 39A of the MMC Act, the Commissioner or the Corporation will not have power to suspend or initiate departmental inquiry against the AMC, and held that the same is in ignorance of the provisions of Section 56 and sub¬section (9) of Section 2 of the MMC Act.

“The court should not always cling to literal interpretation and should endeavor to avoid an unjust or absurd result. The court should not permit a mockery of legislation. It has been held that to make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye, ‘some’ violence to language is also permissible.”

[Kalyan Dombivali Municipal Corporation v. Sanjay Gajanan Gharat, 2022 SCC OnLine SC 385, decided on 31.03.2022]

*Judgment by: Justice BR Gavai


For KDM Corporation: Senior Advocate P.S. Patwalia

For State: Advocate Rahul Chitnis

For Respondent: Advocate Anupam Lal Das

Case BriefsSupreme Court

Supreme Court: In a disciplinary proceeding where it was established that there was a breach of principles of natural justice as the relevant documents mentioned in the charge sheet were not supplied to the delinquent officer, the bench of MR Shah* and BV Nagarathna, JJ has reiterated the settled legal position that in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed.

Factual Background

The Court was deciding the case where the respondent employee serving as a Junior Engineer at Balia found to have committed financial irregularities causing loss of Rs. 22,48,964.42/- to the Government. The Disciplinary Authority, concurring with the findings recorded by the Enquiry Officer, passed an order of recovery of Government loss from the salary; temporarily stopping two salary increments and the remarks given for the year 2017-2018.

The U.P. State Public Service Tribunal quashed the punishment mainly on the ground of Doctrine of Equality and also on the ground that the enquiry conducted was in breach of principles of natural justice in as much as the relevant documents mentioned in the charge sheet were not supplied to the delinquent officer. Allahabad High Court refused to interfere with the Tribunal’s order.


Doctrine of Equality

The Supreme Court did not agree with the Tribunal and High Court’s view on quashing and setting aside the order of punishment imposed by the Disciplinary Authority applying the Doctrine of Equality on the ground that other officers involved in the incident have been exonerated and/or no action has been taken against them. The Court explained,

“The Doctrine of Equality ought not to have been applied when the Enquiry Officer and the Disciplinary Authority held the charges proved against the delinquent officer. The role of the each individual officer even with respect to the same misconduct is required to be considered in light of their duties of office. Even otherwise, merely because some other officers involved in the incident are exonerated and/or no action is taken against other officers cannot be a ground to set aside the order of punishment when the charges against the individual concerned – delinquent officer are held to be proved in a departmental enquiry. There cannot be any claim of negative equality in such cases.”

Therefore, it was held that both the Tribunal as well as the High Court have committed a grave error in quashing and setting aside the order of punishment imposed by the Disciplinary Authority by applying the Doctrine of Equality.

Violation of principle of natural justice

As the enquiry is found to be vitiated and is found to be in violation of the principles of natural justice as the relevant documents mentioned in the charge sheet were not supplied to the delinquent officer, the Court remanded the matter to the Disciplinary Authority to conduct a fresh enquiry from the stage it stood vitiated, i.e., after the issuance of the charge sheet and to proceed further with the enquiry after furnishing all the necessary documents mentioned in the charge sheet and after following due principles of natural justice. The Court directed this exercise to be completed within a period of six months from the date of the present order.

[State of Uttar Pradesh v. Rajit Singh,  2022 SCC OnLine SC 341, decided on 22.03.2022]

*Judgment by: Justice MR Shah


For State: Senior Advocate V.K. Shukla

For respondent: Advocate Utkarsh Srivastava

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and AS Bopanna, JJ has held that once an officer of the department is appointed as an Arbitrator considering the arbitration clause, his mandate to continue the arbitration proceedings shall come to an end on his retirement if the Arbitration clause doesn’t specifically provide for the same. Consequently, it was held that continuance of the arbitration proceedings by such an Arbitrator after his retirement cannot be said to be committing a misconduct by such a Sole Arbitrator.

The ruling came in the case where a Chief Engineer was appointed as a Sole Arbitrator based on the Arbitration Clause in a contract relating to the earthwork including lining of V.U.G.C. from KM 10 to KM 11.

In order to understand the issue, it is important to note the key highlights of the Arbitration Clause i.e. Clause 52 of the Agreement:

  • on the receipt of the notice from the contractor of his intention to refer the dispute to the arbitration the Chief Engineer shall send to the contractor a list of three officers of the rank of Superintending Engineer or higher, who have not been connected with the work under the contract.
  • the contractor shall within fifteen days of receipt of the list select and communicate to the Chief Engineer the name of one officer from the list, who shall then be appointed as the Sole Arbitrator.
  • if a contractor is failed to communicate his selection of name, within the stipulated period, the Chief Engineer shall without delay select one officer from the list and appoint him as the Sole Arbitrator.
  • if the Chief Engineer fails to send such a list within 30 days, as stipulated, the contractor shall send a similar list to the Chief Engineer within fifteen days and the Chief Engineer shall then select an officer from the list and appoint him as the Sole Arbitrator within fifteen days.
  • the arbitration shall be conducted in accordance with the provisions of the Indian Arbitration Act, 1940.

The Court, hence, noticed that the only qualification for appointment as an arbitrator is that he should be the officer of the rank of the Superintending Engineer or higher. Once such an officer is appointed as an Arbitrator, he continues to be the Sole Arbitrator till the arbitration proceedings are concluded unless he incurs the disqualification under the provisions of the Indian Arbitration Act, 1940.

“Even after his retirement, the arbitration proceedings have to be continued by the same Arbitrator. Clause 52 of the agreement does not provide at all that on the retirement of such an officer, who is appointed as a Sole Arbitrator, he shall not continue as a Sole Arbitrator and/or the mandate to continue with the arbitration proceedings will come to an end.”

It is also pertinent to note that, in the present case, the Civil Judge (Senior Division), Roorkee extended the time to the Sole Arbitrator to complete the arbitration proceedings and granted further period of 30 days which was after his retirement and after specifically overruling/rejecting the objections raised by the respondents that after retirement, he cannot continue with the arbitration proceedings. Therefore, once the Sole Arbitrator continued with the arbitration proceedings and passed the award within the extended period of time, it cannot be said that he has misconducted himself as he continued with the arbitration proceedings.

Considering the relevant law and the provisions under the Arbitration clause, the Court held that the Sole Arbitrator, who at the relevant time was the Chief Engineer and was qualified to become the Sole Arbitrator was even nominated and/or appointed by the Chief Engineer as per clause 52. Therefore, considering the clause 52 of the agreement, it cannot be said that his mandate to continue with the arbitration proceedings would come to an end on his retirement.

[Laxmi Continental Construction Co. v. State of UP, 2021 SCC OnLine SC 750, decided on 20.09.2021]


Appearances before the Court by:

For appellant: Advocate Mukesh Kumar Sharma

For State of UP: Senior Advocate Ravindra Raizada

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: Full Bench comprising Wagner, C.J., Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer, JJ. allowed an appeal against a class action lawsuit claiming disgorgement from the Atlantic Lottery Corporation (ALC), a corporation which approves licenses for Video lottery terminals (VLTs).

The class action was instituted on behalf of any natural person who paid to play VLTs in the area in the six years preceding the lawsuit, which claimed that VLTs are deceptive and dangerous and contravene the Criminal Code’s (1985) prohibition of games similar to “three-card monte”. The plaintiffs claim that ALC breached its duty by not warning players of “the inherent dangers associated with VLTs, including the risk of addiction and suicide ideation.” The claim relies on three causes of action i.e., waiver of tort, breach of contract and unjust enrichment, to seek a gain-based award quantified by the profit ALC earned by licencing VLTs. ALC’s application against the claim before a certification judge failed, as did its appeal in the Court of Appeal, which allowed the plaintiff’s lawsuit to proceed to trial.

The Court, however, held that the plaintiffs’ plea is bound to fail since it does not disclose a reasonable cause of action. The bench opined that while disgorgement is a remedy against actionable misconduct, the plaintiffs seek to use it as an independent cause of action under an entirely new category of wrongful conduct, which is akin to negligence but does not require proof of damage. Denying relief on this ground, the Court asserted that “granting disgorgement for negligence without proof of damage would result in a remedy arising out of legal nothingness.” As for the argument concerning the similarity of VLTs to three-card monte, the Court rejected it since the prohibition was directed at the game’s attribute and not its feature of deception.

The Court opined that gain-based recoveries in cases of breach of contract require the consideration of the legitimate interest which such an award seeks to vindicate. Since the award sought by the plaintiffs is measured by the defendant’s gain, it seeks to serve a compensatory purpose which distinguishes it from disgorgement and that makes a gain-based remedy inappropriate. Moreover, the contract between ALC and the plaintiffs under which the plaintiffs paid to play on the VLTs cannot be said to have been vitiated since a benefit derived by a defendant from a valid contract is not unjustified. The plaintiffs failed in establishing a causal connection between the alleged breach of contract and the gain to be disgorged. However, four judges on the Bench dissented by allowing the appeal in part, striking down disgorgement and unjust enrichment as causes of action, instead suggesting that the lawsuit be focused on a breach of duty of care, the adequacy of ordinary remedies resulting from it and whether exemplary damages ought to be awarded. [Atlantic Lottery Corporation Inc. v. Babstock, 2020 SCC 19, decided on 24-07-2020]

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of L. Narayana Swamy, CJ and Jyotsna Rewal Dua, J., dismissed an application which was filed by the petitioners challenging an order dated 10-05-2016 given by the H.P. Administrative Tribunal, Shimla (Tribunal) whereby the T.A. was allowed and the termination against the respondent was quashed and set aside.

The respondent had been working as daily waged Chowkidar with the petitioners- Corporation and was posted at Sehral Depot of Forest Working Unit Kunihar under Forest Working Division, where theft of 229 of resin filled tins took place on the intervening night of 17th and 18th February, 1997 after which an enquiry was initiated against the respondent. The petitioners-Corporation had issued a show-cause notice to the respondent alleging that he had been willfully absent from duty on the intervening night of 17th and 18th February, 1997 following which the services of the respondent were dispensed. Being aggrieved by the order of termination the respondent had approached the Tribunal who had decided in favor of the respondent and thus the instant writ petition was filed by the petitioner.

The Court while dismissing the petition held that a person, who was working as a daily wager or on contract basis and if his services have been discontinued or terminated on the basis of any allegation of misconduct etc., the provisions of the Central Civil Services (Conduct) Rules, 1964 are not applicable to his case, however, even then the principles of natural justice are required to be followed and if an order was passed against a person without affording him an opportunity of hearing, it is in violation of natural justice. In addition, the petition needs to be dismissed on the ground of delay and laches because the writ was filed after three years of the order. [H.P. State Forest Development Corporation Ltd. v. Ishwar Dutt, 2019 SCC OnLine HP 2199, decided on 18-12-2019]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Devendra Kumar Upadhyaya and Mohd. Faiz Alam Khan JJ. while dismissing the petition found no illegality or irregularity in the impugned order passed by U.P. State Public Service Tribunal.

In the instant case, a show-cause notice was issued to Respondent 1 under Rule 10 (2) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 which provides for an award of minor punishment. The Respondent 1 had to reply in respect of irregularities mentioned in the said show-cause notice.

The irregularity was such that as per Rule 10 (2) of U.P. Cable Television Network (Exhibition), Rules 1997, monthly details are required to be presented/furnished in Form-5, however, only three months (November, December 2014 and January 2015) of details were available in the concerned file Form-5 and no details of the earlier months.

In his reply, he stated that at the time of the inspection of the relevant file, all Forms-5 pertaining to the cable operator was available in separate Dak files, however, on account

of urgency at the time of inspection only available Forms-5 were inserted in the file, but the cable operator has been making payment of entertainment tax every month in time.

In view of this, the Commissioner, Entertainment Tax, U.P. passed an order and found that Respondent 1 had not kept Forms-5 of every month relating to the cable operator concerned though he was required to keep the same and accordingly awarded the respondent 1 punishment of censure. This punishment was challenged by the Respondent no.1 under the provision of Rules, 1999, which too was dismissed by the State Government. Respondent 1 preferred claim petition before U.P. State Public Service Tribunal, Lucknow which has been allowed vide impugned judgment.

The Tribunal found that the relevant document, namely, Forms-5 were not kept in the file concerned, however, they were kept elsewhere, hence the same, at the most, may amount to negligence and it will not amount to any misconduct for the reason that by keeping Forms-5 Respondent 1 was not going to be benefited in any manner.

For defining the term ‘Misconduct’, State Government has made Rules under the proviso appended to Article 309 of the Constitution of India which are known as U.P. Government Servants Conduct Rules, 1956. 

The said Rule mandates that every government servant shall at all times maintain absolute integrity and devotion to duty. It further provides that every government servant shall at all times conduct himself in accordance with specific or implied orders of government regulating their behaviour and conduct which may be in force. If anyone behaves in a manner against the said mandate is said to have done ‘misconduct’.

To add to this, Counsel for the petitioner, CSC submitted that in absence of any mens rea the charge against Respondent 1, as alleged, would not amount to misconduct, is erroneous in view of the law laid down by the Supreme Court in the case of Union of India v. J. Ahmad, (1979) 2 SCC 286. For an act or omission to qualify ‘misconduct’ it should be such where irreparable damage or damage with the highest degree of culpability has occurred. 

The Court after analyzing the submissions of the parties and the cases referred to observed that Respondent 1 was alleged to have not kept certain documents in the file concerned. It is not the charge against Respondent 1 that he did not maintain the said documents being its custodian. It is also not the charge against Respondent 1 that documents (Forms-5) pertaining to cable operators were not kept at all. Accordingly, Court stated that at the most respondent 1 can be said to have conducted himself negligently but there being no serious consequence of keeping Forms-5 at a separate place, such act of respondent 1 cannot be construed as misconduct.

In view of the above, the writ petition was dismissed.[State of U.P. v. Rajesh Kumar Singh, 2019 SCC OnLine All 3748, decided on 15-10-2019]

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: Application under Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka was contemplated by Yasantha Kodagoda and Arjuna Obeyesekere, JJ.  for issuance of Writs of Certiorari, Prohibition and Mandamus.

The factual matrix of the case was that the petitioner filed an application where he sought certiorari against the respondent- Inspector General of Police, in lieu to quash the decision of dismissal of the petitioner from the Police Department. Such dismissal order was passed because; a complaint was filed against the petitioner who was a Sub-Inspector, for the illicit relationship with a married woman. The complainant was the husband of the woman with whom the petitioner was in the alleged relationship. The complainant had detained the petitioner when he was found in his house.

A preliminary investigation was conducted and a charge sheet was filed accordingly. It was stated that in the investigations carried out by the Police Department it was revealed that the Petitioner had made an entry in the Information Book that he left the Station to attend lectures at the University of Sri Jayawardenapura. However, inquiries had revealed that, instead the Petitioner had visited the wife of the complainant on that particular day. It was further examined by the Court that all the charges were based on the petitioner who made a false entry in the information book and thereafter had engaged in an illicit relationship with the wife of the complainant and also duping her with an amount of Rs 50,000. He was charged for violating the disciplinary code and bringing the Police Service to disrepute. Eventually, he was found guilty by the Court. Although the Inquiry Officer had only recommended, by way of punishment, the suspension of salary increments and promotions due to the Petitioner, the Senior Deputy Inspector General in charge of the Petitioner had recommended that the services of the Petitioner be terminated as provided for in Section 24:3:2 of Chapter XLVIII of the Establishments Code, as the Petitioner was still under probation at the time the aforementioned incident occurred.

The Court had examined the said provision of the Establishments Code and found that the said recommendation was in terms of the Establishments Code. The Inspector-General of Police had agreed with the said recommendation and by a Disciplinary Order, petitioner to be terminated from the services.

Petitioner then appealed to the National Police Commission which had dismissed his appeal. Aggrieved by which he again appealed to the Administrative Appeals Tribunal, where his appeal was dismissed. The counsel for the petitioner submitted that although the charge sheet contained seven charges, the Inquiry Officer had found the Petitioner ‘guilty’ of only three charges. He further submitted, however that the Senior Deputy Inspector General of Police, the Inspector General of Police, the National Police Commission and the Administrative Appeals Tribunal have all proceeded on the basis that the petitioner had been found guilty of all seven charges, thus, was an error on the face of the record and vitiated their finding.

The Court, observed that the Inquiry Officer had dealt with all the charges and found him guilty of the relevant ones. Thus, the Inquiry Officer has, in fact, found the Petitioner ‘guilty’ of all charges, but had grouped the charges under three heads in his conclusion. The Court further observed that, it was clear to the Court that the Inquiry Officer was satisfied with the core offence – i.e. making a false entry and engaging in conduct unbecoming of a Police officer – which was common to all charges, had been established. It was held that, “Although the Inquiry Officer was required to record his conclusions on each charge separately, no prejudice has been caused to the Petitioner by the course of action adopted by the Inquiry Officer in lumping together charges of a similar nature. The Administrative Appeals Tribunal too has proceeded on the basis that the Petitioner has been found guilty of the principal allegation made against him. In these circumstances, this Court does not see any merit with the submission of the learned Counsel for the Petitioner.”

Hence, the Court found no merits in the application of the petitioner and found him guilty of the said conduct. The application was dismissed.[Ranawana Wedaralalage v. C.D. Wickramaratne, 2019 SCC OnLine SL CA 8, decided on 17-09-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J. decided the Appeal filed against the order of the District Judge in an Arbitration case.

The facts giving rise to the instant appeal are that, the appellant raised an objection under Section 34 of the Arbitration and Conciliation Act, 1996, which was duly rejected by the District Judge hence, the appeal is filed under Section 37 of the said Act.

The factual matrix of the case was that the appellant contracted with the respondent (contractor) for the construction of a pump house building. The tenure specified for the said construction was for 11 months, but due to some delay the in handing over the construction site to the said respondent; subsequently, the construction had to be stopped due to various reasons. But consequently, the work was allegedly completed.

Since dispute arose between the parties regarding payment for the work done by the respondent, therefore, the matter was referred for arbitration in terms of the contract executed between the parties. The Arbitrator passed an award where he partially allowed the claims made by the respondent. Therefore aggrieved by the award of the Arbitrator the respondent filed an appeal on the ground that misconduct was caused by the Arbitrator.

Eventually, the District Judge rejected the said application filed under Section 34 of the Act. The only ground raised in the instant Appeal was that learned Arbitrator overlooked the condition contained in Clause 11(C) of the contract, while passing the award. The said Clause (C) was that “no claim in respect of the compensation, howsoever arising as a result of the extension granted shall be admitted.”

Counsel for the appellant Virndra Kapurwan, submitted that the Arbitrator erred in allowing the claim made by the respondent, without appreciating the real controversy involved in the matter. He further submitted that the District Judge erred in rejecting the challenge thrown by the appellant by making an application under Section 34 of the Act.

The Court found that the Arbitrator had considered the alleged clause and then passed the award. A perusal of the award revealed that Arbitrator had held that appellant was equally responsible for the delay in completion of work. It was further held that the appellant could not the shelter behind the Clause for a long delay.

The Court observed that the District Judge had rightly held that the ground was not available under Section 34 of the Act of 1996. “Misconduct by the Arbitrator was no more a ground of challenge to an arbitration award.”

The Court relied on the judgment of Navodaya Mass Entertainment v. J.M. Combines, (2015) 5 SCC 698, where the Supreme Court had held that “Once the Arbitrator has applied his mind to the matter before him, the Court cannot reappraise the matter as if it were an appeal and even if two views are possible, the view taken by the Arbitrator would prevail.”

In view of the aforesaid legal position, the Court held that the learned District Judge was justified in holding that he cannot go into the question of the reasonableness of the reasons given by Arbitrator. Learned District Judge has rightly held that an award given by the Arbitrator cannot be challenged on the ground of misconduct on the part of the Arbitrator. Hence, the appeal was dismissed.[Union of India v. Allied Traders, 2019 SCC OnLine Utt 671, decided on 03-07-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Sisira De Abrew, Prasanna Jayawardena and S. Thurairaja, JJ. entertained the instant appeal filed against the order of  Provincial High Court, where the judgment passed by the Labor Tribunal was reversed.

The factual matrix of the case was that one workman-respondent was employed with People’s Bank-appellant, where he was a member of the Trade Union. Several allegations of misconduct were filed against the respondent and he was terminated from his services from the said ground. The Labor Tribunal held that the termination was just and equitable and also found that during the course of his employment at the appellant’s establishment, the respondent had misconducted himself on several occasions, some of which included disobeying the orders of his superiors, misbehaving in the presence of customers and abusing his superiors using foul and obscene language.

Hence, the respondent against the order of the Tribunal filed an appeal in the High Court, where it was held that, ‘Respondent was “mentally retarded” and that owing to his mental retardation, he could not be held responsible for the alleged misconduct.’ Accordingly, the order of the Tribunal was set aside and the appeal was allowed, payment of compensation was ordered, equivalent to the salary of five years.

Thus, the Appellant-Bank filed the instant appeal aggrieved by the order of the High Court for payment of compensation and not holding respondent liable for the alleged misconduct. The Court observed that the theory advanced by the High Court was applicable when determining the criminal responsibility of a person in a criminal case. However, in cases involving an employer-employee relationship, such standards set out in criminal law cannot be applied since; such a relationship was founded on the principles of trust and discipline. It was further noted that, as a result, any breach of these principles affected, not only the relationship between the employer and the employee but also the quality of the services provided by the employer along with the reputation of his establishment.

It was further observed by the Court that, the respondent had, not only refused to obey the legitimate instructions of his superiors at several instances but had also insulted and humiliated a superior officer in the presence of customers and it is a general rule that refusal to obey reasonable orders justifies the dismissal from service. Hence, the order of the Tribunal was upheld and the judgment of the High Court was set aside on the ground that, higher standards which were applicable in criminal cases cannot be applied to cases before the Labor Tribunal. Thus, the termination order was maintainable.[People’s Bank v. Lanka Banku Sevaka Sangamaya, SC. Appeal No. 107 of 2010, decided on 09-07-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of Hrishikesh Roy, C.J. and A.K. Jayasankaran Nambiar, J. dismissed a PIL for being frivolous in nature and further explaining the concept and seriousness of misuse of public interest litigations by citing two prominent Supreme Court Judgments, i.e. State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402 and Tehseen Poonawalla v. Union of India, (2018) 6 SCC 72.

Now, coming onto the issue raised by the petitioner, the public interest litigation was based on a newspaper report which alleged that there was security lapse in the conduct of banking operation by SBI. The stated petition was filed against State Bank of India and their General Manager. Petitioner basing his allegation on the newspaper report further stated that “there are serious lapses by the Bank and this has resulted in customer data leakage and disruption of online services.” Petitioner sought investigation and further direction to General Manager, SBI to remit Rs 5 crores to Kerala State Legal Services Authority.

Respondents denied the allegations and asserted that customers details are fully secure in the servers maintained by SBI, and there are enough inbuilt safeguards in the conveyance of data, for the usual banking transactions.

Therefore, the High Court noted and further stated that the PIL mechanism is being misutilised by the litigant since the material has not been verified on the basis of which the public interest litigation was filed.

The Court cited the case of State of Uttaranchal v. Balwant Singh, (2010) 3 SCC 402, in which various guidelines were issued in order to preserve the purity and sanctity of the Public Interest Litigations. Another case cited was of Tehseen Poonawalla v. Union of India, (2018) 6 SCC 72, where the Supreme Court once again addressed the issue and stated that:

“Misuse of public interest litigation is a serious matter of concern for the judicial process. Frivolous or motivated petitions, ostensibly invoking the public interests detract from time and attention which courts must devote to genuine causes.”

High Court dismissed the petition with costs by explaining the severity of the time of the Court and seriousness of the judicial process. [Shaheer Ali v. SBI, 2019 SCC OnLine Ker 2048, decided on 25-06-2019]

Case BriefsHigh Courts

Meghalaya High Court: A Division Bench of Ajay Kumar Mittal, C.J. and H.S. Thangkhiew, J. dismissed a writ appeal filed by a bank officer whereby he was held guilty of misconduct, holding the same to be devoid of any merit.

Appellant herein was accused of committing serious irregularities in payment of three high-value non-home fake cheques amounting to Rs 12,917,000 allegedly issued by the Deputy Inspector of School, Kanpur from an account maintained at Swaroopnagar, Kanpur Branch. The amount was credited by the appellant to the three newly opened saving bank accounts without ensuring the genuineness of the payee and without observing Bank’s extant laid down systems and procedures. The Appellant missed the absence of significant features like ‘bank’s logo in invisible ink’, ‘valid for Rs….’, etc. and did not ensure the use of fugitive ink test/ ultraviolet test for verifying the genuineness of the cheques. Also, he authorized the payment of such high-value cheques single-handedly without referring the same to second Passing Officer despite the bank’s extant instruction that cheques for payment of Rs 10 lakhs and above must be authorized by two officers. The disciplinary officer held all the charges against the appellant, to be proved. The learned Single Judge held that the appellant’s act of not entering the cheques into the high-value transaction register, and giving his authorization on the same, was misconduct on his part. Considering the gravity of the misconduct, the Single Judge did not nullify the punishment of compulsory retirement given by the disciplinary authority, aggrieved whereby the appellant filed this writ appeal. 

 The Court while hearing the case, relied on State Bank of India v. Bela Bagchi, (2005) 7 SCC 435 where, while observing on the discipline to be maintained in a bank and the duties of its employees, it was recorded by the Supreme Court that every employee of bank is required to take all possible steps to protect the interests of the bank and its customers. He must discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a Bank employee. It was further recorded that at the same time, acting beyond one’s authority was by itself a breach of discipline and was misconduct. The Court also relied on Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, (1996) 9 SCC 69 whereby acting beyond one’s authority was held to be misconduct within the meaning of Regulation 24 of Central Bank of India Officers Employees (Discipline & Appeal) Regulations, 1976. It was further recorded by the Court that proof of any loss is not necessary.

Furthermore, the Division Bench of this Court opined that usually the punishment imposed by the disciplinary authority must not be disturbed by the High Courts, except in appropriate cases and only for examining all the factors, including the nature of duties assigned having due regard to their sensitiveness and exactness expected of, and discipline required to be maintained, and the department in which the delinquent person concerned works. Thus, having gone through all the facts and the judgment rendered by the learned Single Judge, the Court, found no merit in the appeal, and henceforth dismissed it.[Gautam Dhar v. State Bank of India, 2019 SCC OnLine Megh 105, decided on 11-06-2019]

Cyril Amarchand MangaldasExperts Corner

In December 2018, the Competition Commission of India (CCI) amended the Competition Commission of India (General) Regulations, 2009 (General Regulations) and included a new regulation restricting advocates from accompanying individuals summoned by the office of the Director General (DG). Specifically, the newly inserted Regulation 46-A (2) of the Competition Commission of India (General) Amendment Regulations, 2018 does not allow advocates to, “sit in front of the person so summoned” and states that an advocate, “shall not be at a hearing distance and shall not interact, consult, confer or in any manner communicate with the person, during his examination on oath”.[1] In case of contravention of these conditions, the amendment states that an advocate may be held liable for misconduct, such that he or she may be disallowed from appearing before the DG and the CCI for a time period the CCI deems necessary. Additionally, in cases of misconduct, the CCI may also forward a complaint against the relevant advocate to the Bar Council of the State of which the advocate is a member.

Pursuant to the notification of this amendment, the Tamil Nadu Advocates Association (TNAA) along with the former Vice-Chairman of the Bar Council of Tamil Nadu and Puducherry filed a petition challenging the validity of the amendment on grounds of it violating provisions of the Advocates Act, 1961 and that it attempts to usurp the exclusive functions of the Bar Council of India with respect to undertaking disciplinary action against advocates. In this regard, on 4-1-2019, the Madras High Court (HC) issued an interim stay on the implementation of the amendment until further orders. In this context, currently there exists an inherent ambiguity with regard to the position of advocates vis-à-vis the amendment and the Competition Act, 2002.

Inherent Ambiguity and HC Interim Stay

The amendment is the first attempt to frame written rules and/or regulations on advocates accompanying persons summoned by the DG. Despite lack of such rules and regulations, in practice, advocates would, in any case, be placed in a position wherein he or she could not communicate, consult, or confer with the person being examined under oath. While this has now been codified in the amendment, there is additional language that states that an, “advocate shall not be at a hearing distance” from the person being examined under oath. This is a major concern and creates significant ambiguity, as advocates being placed in a different room from the person being examined becomes a real possibility.

Further, the amendment does not elaborate on what essentially constitutes “misconduct” and nevertheless goes on to detail methods of punishment that the CCI can impose on the advocate in cases of misconduct, which includes the ability to disallow an advocate to appear before the DG and CCI. This magnifies the amendment’s ambiguity, as an advocate’s misconduct is left to the subjective assessment of the DG at the time of the deposition/examination of a person under oath. Moreover, the ability to discipline such an advocate who engages in misconduct is also a prima facie encroachment of the powers of the Bar Council of India that is empowered to discipline advocates in accordance with the provisions of the Advocates Act, 1961. While the HC appears to have taken cognizance of the latter fact i.e. potential encroachment of the Bar Council of India’s powers and has issued an interim stay on the implementation of the amendment pursuant to the petition filed by TNAA, the inherent ambiguity of the amendment is yet to be examined as a ground for invalidity.

Prevalent Scenario

In light of the interim stay passed by the HC on the implementation of the amendment, there seems to be a procedural vacuum in relation to advocates accompanying persons summoned by the DG. Prior to the amendment, an advocate would accompany the person without any prior notification to the DG, if there existed an executed power of attorney in favour of the advocate. Presently, despite the interim stay of the HC, advocates duly authorised by a power of attorney to represent the person summoned by the DG must file a letter prior to the date of interrogation requesting that he or she can accompany the person summoned by the DG and the presence of an advocate during such an integration which is essential to the interest of the client is uncertain .

*Anshuman Sakle is a Partner with the Competition Law Practice at Cyril Amarchand Mangaldas and can be contacted at  Dhruv Rajain, Senior Associate can be contacted at and Balaji Venkatakrishnan, Associate can be contacted at with the Competition Law Practice at Cyril Amarchand Mangaldas.

[1] The Competition Commission of India (General) Amendment Regulations, 2018, available at <>.


Case BriefsHigh Courts

Karnataka High Court: The Bench comprising of S. Sunil Dutt Yadav, J. hearing a petition challenging motion of no-confidence moved against President of Hallare Gram Panchayat, held the same to be invalid for not being in accordance with law.

Petitioner, the President of Hallare Gram Panchayat, was issued a notice issued by respondent whereby motion of no-confidence was sought to be initiated against him for his alleged misconduct. He challenged the said notice in the instant petition contending that as per Section 49(1) Proviso 2 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 a resolution expressing want of confidence cannot be moved within first thirty months from the date of the election. Since he was elected on 22-03-2018 and the motion was moved on 25-09-2018, therefore the respondent ought not to have entertained the no-confidence motion in view of prohibition given under proviso to Section 49(1).

The Court held that proceedings initiated by respondent infracted the prohibition contained in proviso to Section 49(1) of the Act and hence was liable to be set aside. It was observed that the only exception for moving a motion of no-confidence against a President of Gram Panchayat was if it is initiated with allegations under Section 49(2) of the Act. However, in view of the judgment of the Division Bench of this Court in Lakshmamma v. State of Karnataka, 2018 SCC OnLine Kar 1750 the said option also could not be exercised until fresh rules in that regard were framed. 

Accordingly, the petition was allowed and respondents were granted liberty to pursue an action for removal of petitioner for alleged acts of misconduct under Sections 43-A and 48(4) of the Act. [Preethi v. Assistant Commissioner, Mysore Sub-Division, 2018 SCC OnLine Kar 2788, Order dated 13-12-2018]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., allowed a writ petition filed against the order of respondent authorities, whereby petitioner was placed under suspension without there being any misconduct on petitioner’s part.

The main issue that arose before the Court was whether the actions of respondents were justified with regard to the suspension of the petitioner.

The Court observed that the respondents communicated the order of suspension to the petitioner after a year of issuance of that order. The respondents had not initiated enquiry into the matter of petitioner, nor the petitioner had been charge-sheeted even after 2 years of his order of suspension was passed. The prolongation of suspension period beyond two years can only be viewed as punitive which is not sustainable in law. The Court referred to the judgment passed in the case of Ghulam Mohammad Mir v. State, 2017 (II) SLJ, 1996, wherein it was held that the suspension of an employee is resorted to only to facilitate unhindered and fair inquiry into alleged misconduct committed by such employee but if such suspension is unnecessarily prolonged and object for which it was resorted to, is not achieved and no inquiry into conduct of such employee is initiated with reasonable dispatch, the order of suspension would become punitive and susceptible to challenge, being violative of Article 14 and 16 of the Constitution of India.

The Court held that the as per the principles laid down in Ghulam Mohammad’s case, the actions of the respondent authorities cannot be held justified. The respondents ought to have initiated a proper inquiry into the matter within a reasonable time. Resultantly, the Court allowed the writ petition and quashed the order of respondents. [Babu Ram Sharma v. State,2018 SCC OnLine J&K 777, order dated 24-10-2018]

Hot Off The PressNews

Supreme Court: The Bench comprising of AK Sikri and Ashok Bhushan, JJ., passed an order wherein they restored the honour of an Army veteran who was one of the officers who led the Operation Blue Star in the year 1984. The Supreme Court in its order upheld the decision of Armed Forces Tribunal to exonerate Major Kunwar Ambreshwar Singh of the charges of alleged misconduct and awarding him the rank of Lt. Colonel post-retirement.

The Chief of the Army staff had refused to grant substantive rank of Lt. Colonel, by time scale, to Major Kunwar Ambreshwar Singh and all other directions which deprived him of promotional avenues. The alleged charge against him was of retaining certain electronic items recovered during “Operation Blue Star” conducted to flush out Sikh extremists from the Golden Temple complex.

The above-stated order of the Chief of Army staff was set aside by the Armed Forces Tribunal (Lucknow Bench), which order was upheld by the Supreme Court bench.

The Bench dismissed the appeal of the Centre against the order of AFT while reducing the costs imposed from Rs 10 lakhs to Rs 1 lakh.

[Source: PTI]

Case BriefsSupreme Court

Supreme Court: Explaining the scope misconduct by employees, the bench of RK Agrawal and AM Sapre, JJ said that there is no defense available to a delinquent to say that there was no loss or profit resulting in a case when officer/employee is found to have acted without authority.

The Court was hearing the case where the appellant, an assistant with LIC, was suspended for his alleged misconduct as he had, in discharge of his duties, issued as many as seven receipts including special premium receipts to the policyholders without receiving any premium amount from them. The appellant, in substance, admitted the issuance of receipts by him and also admitted non-receipt of the amount against any of these receipts from any of the policyholders. He, however, contended that such mistake occurred on his part due to heavy pressure of workload on him and some family circumstances/worries that were troubling him during those days.

Rejecting the contention of the appellant, the Court said that an employee, in discharge of his duties, is required to exercise higher standard of honesty and integrity. In a case where he deals with the money of the depositors and customers, it is all the more necessary for him to be more cautious in his duties because he deals with the money transactions for and on behalf of his employer.

It was further held that every such employee/officer is, therefore, required to take all possible steps to protect the interest of his employer. He must, therefore, discharge his duties with utmost sense of integrity, honesty, devotion and diligence and must ensure that he does nothing, which is unbecoming of an employee/officer. Any dereliction in discharge of duties whether by way of negligence or with deliberate intention or with casualness constitutes misconduct on the part of such employee/officer. [Mihir Kumar Hazara v. Life Insurance Corporation, 2017 SCC OnLine SC 1068, decided on 11.09.2017]


Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): While declaring an RTI applicant as misuser of social media and RTI, CIC warned him to stop misusing the law to harass his colleagues in a Delhi college. The Commission was hearing an appeal filed by an employee of Ambedkar Polytechnic, who filed RTI application seeking wide range of information about his colleagues and Principal and even of the officers who were supposed to inquire into complaints filed against him. He sought copies of integrity certificate of committee members those were involved in the inquiry. Appellant had already filed number of complaints, grievance representations, RTI applications, almost chocking entire administration. He also videographed the lecture of one of his lady colleagues in the class room without permission and put it on social media with reckless allegations. She complained against him before Delhi Commission for Women, which was dismissed on the ground that the Principal should have given a memo. She was upset with invasion of her privacy and reputation by wide circulation of abusive comments with video giving an impression there was some scandal. After perusal of documents and hearing the parties, CIC observed that the appellant is, “a misuser of every mechanism” and “every misuse of system like, PGMS, RTI and Social media shall be considered as an item of misconduct that invite disciplinary action.” “The head of the institute need to examine if it (actions of appellant) amounts to any offence under IPC or IT Act, and shall report to appropriate authorities including police,” CIC noted. The Commission also observed that the women colleagues were also entitled to get compensation for invasion of their privacy. The Commission further recommended the Delhi Commission for Women, to take necessary action on complaints of the lady colleague and report the compliance to the Commission. [Mohd. Shakeel Saifi v. Bhai Parmanand Institute of Business Studies, 2016 SCC OnLine CIC 3673, decided on March 3, 2016]