Whether principles of natural justice violated if an enquiry report is not given to a delinquent employee?

 As stated above, Annexure – A8 enquiry report and PR

minutes were given to the applicant only along with Annexure – A7 show cause notice after the Government accepted the findings in the enquiry report and provisionally decided to impose a penalty. It is pertinent to note that the enquiry officer and the disciplinary authority in the instant case were not one and the same. This is in violation of the principles of natural justice and the same cannot be condoned at all, as held in B. Karunakar's Case (supra)

“The findings or recommended punishment by the

enquiry officer are likely to affect the mind of the

disciplinary authority in his concluding the guilt or

penalty to be imposed. The delinquent is, therefore,

entitled to meet the reasoning, controvert the

conclusions reached by the enquiry officer or is entitled

to explain the effect of the evidence recorded. Unless

the copy of the report is supplied to him, he would be in

dark to know the findings, the reasons in support

thereof or nature of the recommendation on penalty. He

would point out all the factual or legal errors committed

by the enquiry officer. He may also persuade the

disciplinary authority that the finding is based on no

evidence or the relevant material evidence was not

considered or overlooked by the enquiry officer in

coming to the conclusions, with a view to persuade the

disciplinary authority to disagree with the enquiry

officer and to consider his innocence of the charge, or

even that the guilt as to the misconduct has not been

established on the evidence on records or disabuse the

initial impression formed in the minds of the

disciplinary authority on consideration of the enquiry

report. Even if the disciplinary authority comes to the

conclusion that charge or charges is/are proved, the case

may not warrant imposition of any, penalty. He may

plead mitigating or extenuating circumstances to impose

no punishment or a lesser punishment. For this purpose

the delinquent needs reasonable opportunity or fair play

in action. The supply of the copy of the report is neither

an empty formality, nor a ritual, but aims to digress the

direction of the disciplinary authority from his

derivative conclusions from the report to the palliative

path of fair consideration. The denial of the supply of

the copy, therefore, causes to the delinquent a grave

prejudice and avoidable injustice which cannot be cured

or mitigated in appeal or at a challenge under Art. 226

of the Constitution or S.19 of the Tribunal Act or other

relevant provisions. Ex post facto opportunity does not

efface the past impression formed by the disciplinary

authority against the delinquent, however, professedly

to be fair to the delinquent. The lurking suspicion

always lingers in the mind of the delinquent that the

disciplinary authority was not objective and he was

treated unfairly. To alleviate such an impression and to

prevent injustice or miscarriage of justice at the

threshold, the disciplinary authority should supply the

copy of the report, consider objectively the records, the

evidence, the report and the explanation offered by the

delinquent and make up his mind on proof of the charge

or the nature of the penalty. The supply of the copy of

the report is thus, a sine qua non for a valid, fair, just

and proper procedure to defend the delinquent himself

effectively and efficaciously. The denial thereof is

offending not only Art.311(2) but also violates Arts. 14

and 21 of the Constitution. {Para 7}

8. The argument on the side of the Government before the

Tribunal that there is no specific rule in the Kerala Police

Departmental Inquiries, Punishment and Appeal Rules to give enquiry report at the stage of drawing up of the same to the delinquent cannot be accepted at all. The right to receive the report is considered as the essential part of reasonable opportunity to be extended to the person affected by the report and a refusal to furnish the report amounts to denial of the right to defend himself and to prove his innocence in the disciplinary proceedings. Even if such right is not explicitly stated in the regulations or statute, that right being a fundamental and essential part of the natural justice, must be read into every regulation or rules. There is nothing in the rules aforesaid

which excludes the operation of the principle of natural justice

entitling the delinquent to be served with a copy of the enquiry

report before accepting the report or proposing a punishment. It is trite that the principles of natural justice must be read into the

unoccupied interstices of the statute/rules or regulations unless there is a clear mandate to the contrary.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (KAT) No. 130 of 2022

JAYACHANDRAN V  Vs STATE OF KERALA

PRESENT

 MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

&

MR.JUSTICE MOHAMMED NIAS C.P.

Author: Mohammed Nias.C.P., J.

Dated: 16th day of June, 2022

Print Page

What is basic concept of deputation under employment law?

The Respondent as a claimant and Plaintiff had to discharge the initial burden of establishing that the Appellant was sent on deputation overseas. Significantly, while the terms and conditions of employment have been reduced to writing, there is no valid evidence on the basis of which it can be deduced that the Appellant was sent on deputation overseas. On the contrary, it is the contention of the Appellant that she was sent overseas for a business meeting. It is true that the Appellant was represented in the proceedings in the suit by her spouse as the holder of a power of attorney. That however did not obviate the legal requirement that the burden must be discharged by the Plaintiff of establishing its own case. There is no material evidence on the record to indicate that the Appellant was sent on deputation. Deputation has a definite connotation in law. A two-judge Bench of this Court in State of Punjab v. Inder Singh MANU/SC/1334/1997 : (1997) 8 SCC 372 has clarified the concept of deputation and stressed on the particular rights and liabilities that are associated with a deputation, which occurs only with the consent of the employee. Justice D.P. Wadhwa, speaking for the Court, held:

18. The concept of "deputation" is well understood in service law and has a recognised meaning. "Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above...

(emphasis supplied)

A deputation would also involve a third party-the borrowing employer who discharges specific rights and obligations towards the employee and the lending employer. A three-judge Bench of this Court in Umapati Choudhary v. State of Bihar MANU/SC/0376/1999 : (1999) 4 SCC 659 clarified the tripartite nature of a deputation in the following terms:

8. Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. In the case at hand all the three conditions were fulfilled...

Thus, a deputation involves a tripartite consensual agreement between the lending employer, borrowing employer and the employee. Specific rights and obligations would bind the parties and govern their conduct. A transient business visit without any written agreement detailing terms of deputation will not qualify as a deputation unless the Respondent were to lead cogent evidence to indicate that the Appellant was seconded to work overseas on deputation. This aspect of the case has completely been ignored by all the three courts below. The claim was not substantiated having regard to the plain terms of the contract.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 346 of 2022 

Decided On: 12.01.2022

 Sarita Singh Vs.  Shree Infosoft Private Limited

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and A.S. Bopanna, JJ.

Citation: MANU/SC/0061/2022

Print Page

Whether Employee is Estopped From Challenging Terms & Conditions Of Employment If It Violates Statutory Requirement?

The submissions of the learned counsel for the respondents that the appellants have accepted the terms and conditions contained in the letter of appointment deserves rejection for the reason that it is not open for a person appointed in public employment to ordinary choose the terms and conditions of which he is required to serve. It goes without saying that employer is always in a dominating position and it is open to the employer to dictate the terms of employment. The employee who is at the receiving end can hardly complain of arbitrariness in the terms and conditions of employment. This Court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that would cost his/her job itself.{Para 42}

43. The bargaining power is vested with the employer itself and the employee is left with no option but to accept the conditions dictated by the authority. If that being the reason, it is open for the employee to challenge the conditions if it is not being in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved.

Supreme Court

JUSTICE UDAY UMESH LALIT JUSTICE AJAY RASTOGI

SOMESH THAPLIYAL & ANR. ETC. Vs. VICE CHANCELLOR, H.N.B. GARHWAL UNIVERSITY & ANR.

CIVIL APPEAL NO(S). 3922-3925 OF 2017

3rd September 2021

Author: Rastogi, J.

Citation: 2021 ALL SCR (ONLINE) 404

Print Page

Whether the court can declare that a private employee's service continues and is entitled to get all consequential benefits?

 9. Through the present petition the petitioner seeks enforcement of a contract of service. The law on the issue is no more res integra. Subject to well defined categories of exceptions, the law and more particularly provisions of Specific Relief Act, do not contemplate enforcing a service contract, as that would amount to specific performance of a contract. In this context I may usefully rely on a passage from Halsbury’s Laws of England, Fourth Edition, Volume 44, which is as under:-

“407. Contracts for personal work or services.— A judgment

for specific performance of a contract for personal work or

services is not pronounced, either at the suit of the employer

or the employee. The court does not seek to compel persons

against their will to maintain continuous personal and

confidential relations. However, this rule is not absolute and

without exception. It has been held that an employer may be

restrained from dismissing an employee in breach of contract

if there is no loss of confidence between employer and

employee or if (at least in a contract of employment to carry

out a public duty) the employee has been dismissed in a

manner which does not comply with statutory or contractual

regulations governing dismissal. No court may, whether by

way of an order for specific performance of a contract of

employment or an injunction restraining a breach or

threatened breach of such a contract, compel an employee to

do any work or attend at any place for the doing of any work.

This principle applies not merely to contracts of employment,

but to all contracts which involve the rendering of continuous

services by one person to another, such as a contract to work

a railway line ….”

10. Supreme Court in several judgments has observed that a Court would normally not give a declaration that a contract subsists and the employee, after removal from service, can be deemed to be in service against the consent of the employer, subject to three broad exceptions (i) where a public servant is removed in contravention of Article 311 of the Constitution of India; (ii) where the worker is reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body

violates mandatory provisions of a Statute.

11. The only remedy thus available to such an employee, who is

discontinued from service, if aggrieved, is to sue for damages and this is evident from reading the provisions of Section 14 read with Section 41 of the Specific Relief Act.

8. In view of the aforesaid judgments, the following

conclusions in law emerge:-

(i) A contract of private employment is not similar to the

public employment and in such private employment there is

no scope of applicability of the principles of administrative

law/public law.

(ii) A contract of employment which provides termination of

services by one month's notice, then, at best the employee

will only be entitled to one month's pay in terms of the

employment contract. An employee is not entitled to any

relief of continuation in services or pay with consequential

benefits for alleged remaining period of services till the date

of his superannuation.

(iii) As per the provision of Section 14(1)(c) of the Specific

Relief Act, 1963, a contract which is determinable in nature

cannot be specifically enforced. Since the service contract in

the present case is determinable by one month's notice there

does not arise the question of giving of any reliefs which

tantamount to enforcement of a determinable contract. As

per Section 14(1)(b), a contract of personal service cannot

be enforced when the employer is not the Government or

“State” as per Article 12 of the Constitution of India.

Plaintiff has in fact received one month's pay and therefore

his claim will stand satisfied in law and he is not entitled to

any reliefs as prayed for in prayer clauses in the suit.”

 IN THE HIGH COURT OF DELHI AT NEW DELHI

  W.P.(C) 7196/2020

DEEPAK WANKHEDE  Vs INDIAN RENEWABLE ENERGY DEVELOPMENT AGENCY 

CORAM:

HON'BLE MS. JUSTICE JYOTI SINGH

Date of Decision:09.11.2020

Print Page

Whether an employee who retired on 31st of a month is entitled to the increment which would have fallen due on 1st of the next month?

The petitioner was not on duty on 1.4.2003. Increment can be drawn only when an employee is on duty. The increment in terms of FR 24 & 26 did not become due during the period of service of the petitioner. Therefore, increment on 1.4.2003 cannot be sanctioned in favour of petitioner on the ground that he had completed twelve months of continuous service. The date of increment falls due on the first day of the succeeding month after the retirement. Petitioner retired on the basic pay drawn by him on 31.3.2003 i.e. his date of retirement. His pension has to be determined accordingly. Petitioner had become a pensioner on 1.04.2003. He cannot be held entitled to any increment which may fall due post his retirement. He is entitled only to those increments which fall due to him during the period of his service.

 In the High Court of Himachal Pradesh, Shimla

(Before Tarlok Singh Chauhan and Jyotsna Rewal Dua, JJ.)

CWP No 2503 of 2016

Hari Prakash Vs State of Himachal Pradesh

CWP No. 2503 of 2016 a/w CWPOA No. 663 of 2020

Decided on November 6, 2020, 

Citation: 2020 SCC OnLine HP 2362

Print Page

Whether employee can be granted service benefits if he is terminated from service?

Dismissal is punitive in nature while a termination of employment simply brings an employment contract to an end. 'Dismissed' as per Oxford Dictionary is "treat as unworthy of serious consideration and refuse further hearing to (a case)", whereas Black's Law Dictionary defines 'dismissal' as "termination of an action or claim without further hearing".

8. In the present case, a notice was served upon the respondent. A fair hearing was given and therefore, it cannot be said that the petitioner had exercised the powers arbitrarily. Termination of employment as per Black's Law Dictionary is the complete severance of an employer-employee relationship.

9. Many a times dismissal and termination are held to be synonymous, however, they differ in letter and spirit as well as the ascertainment of the rights of the employee would differ. A dismissal on account of grave misconduct, as in the present case, would necessarily entail dismissal. In the present case, the Petitioner Corporation has been fair enough to conduct an enquiry and give an opportunity of hearing to the employee.

10. Thus, the difference between termination and dismissal is that-Dismissal could be on account of misconduct involving dishonesty or criminality and that is not the case in termination. On termination, the employee would be entitled to receive gratuity and other terminal benefits, whereas the same cannot be granted in case of dismissal.

IN THE HIGH COURT OF BOMBAY

W.P. No. 1347 of 2004

Decided On: 05.10.2018

 Maharashtra State Road Transport Corporation  Vs.  A.B. Patel

Hon'ble Judges/Coram:

Sadhana S. Jadhav, J.

Citation: 2019(2) MHLJ 207

Print Page

Whether adverse annual confidential report can be challenged on ground that reviewing officer has given remark belatedly?

 Thus, the Tribunal has recorded that the Reviewing Officer for the year 2001-02 has written her remarks 2 years and 2 months after Reporting Officer has written his remarks. For the year 2002-03, remark have been written by the Reviewing Officer after a gap of 1 year and 5 months and for the year 2003-04, remarks are written after Smt. Bhave left the department of Atomic Energy. The Tribunal has found that notwithstanding the ambiguity of date of writing of remarks by the Reviewing Officer the remarks still show that the Reviewing Officer has not taken pains to record detailed reasons for downgrading ACRs of the respondent from 'Very Good' to 'Average' (2 levels below). In fact the OM dated 23/09/1985 has prescribed the time schedule for preparation of the confidential report. The Reviewing Officer has far exceeded this time schedule. Having gone through the reasoning of the Tribunal, we do not find that the conclusion reached by the Tribunal about the adverse remarks and below-benchmark grading recorded by the Reviewing Officer after inordinate and unexplained delay is in any manner perverse or unwarranted. 

Reliance on these gradings of the Reviewing Officer by the petitioners for denial of promotion to the respondent is therefore unjustified.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 953 of 2017

Decided On: 10.01.2018

Union of India and Ors. Vs. Vikas Chand Chaturvedi and Ors.

Hon'ble Judges/Coram:

V.K. Tahilramani, Actg. C.J. and M.S. Karnik, J.

Citation: 2018(2) MhLJ 403

Print Page

Whether individual medical reimbursement can be denied to husband and wife if they both are on service?

Let us consider the case of two individuals; a male employee (A) and a female employee (B). If the two are not married, each would independently be entitled to a medical reimbursement subject to the ceiling provided independent of each other. Thus, if the ceiling be Rs. 30,000/- and (A) incurs expenses of Rs. 20,000/-, he would get full reimbursement of Rs. 20,000. At the same time, in the same financial year (B) would similarly get reimbursement of Rs. 20,000/- for medical expenses incurred by her. The sum total of the medical reimbursement received by (A) and (B), who are not married, would be a sum of Rs. 40,000/-. They may be in a live-in relationship or divorced. But, the movement (A) and (B) gets into holy matrimony, they are put to disadvantage. (A) being the husband and (B) being the wife, would not have to make a declaration to claim medical benefits only on one of their accounts and in default of that option, it would be the husband's account.

10. If we refer back to the illustration, what will now happen? The maximum ceiling in one account is Rs. 30,000/-. Either the wife's full medical reimbursement would be curtailed to Rs. 10,000/- or the husband's medical reimbursement would be curtailed to Rs. 10,000/-. Thus seen, upon holy matrimony, they would be put to serious disadvantage. This is what is arbitrary. It is for this reason we have held that medical reimbursement is an individual entitlement and by reason of matrimony parties cannot be put to disadvantage. A caveat would be necessary. Parties being entitled to independent claims there cannot be duplication of the claim, in the sense, the wife cannot claim her medical reimbursement from her account as her own independent claim and then for the same event, claim through her husband's account showing herself to be the dependent spouse. That would be duplication of claim and is impermissible. Thus, the circular to the extent to which it directs recovery of amount, when the same is claimed by both the spouses is bad to the extent indicated above. It could apply only in case of duplication of claims and not otherwise.

11. Thus, we have to hold that there cannot be any discrimination or any arbitrary application of the provisions in relation to medical allowances/reimbursement putting persons to disadvantage merely by reason of marriage.

In the High Court of Kerala at Ernakulam

(Before Navaniti Prasad Singh, C.J. and Raja Vijayaraghavan V, J.)

S. Venugopal S/o V. Sukumaran Nair, 

v.

Airports Authority of India

W.A. No. 1225 of 2017

Decided on June 20, 2017

Citation: 2017 SCC OnLine Ker 7397

Print Page

Whether service details of employee can be disclosed under RTI?

 In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in Girish Ramchandra Deshpande v. Central Information Commissioner and Ors., MANU/SC/0816/2012 : (2013) 1 SCC 212 and R.K. Jain v. Union of India and Anr., MANU/SC/0384/2013 : (2013) 14 SCC 794, it may not be necessary to re-examine any legal issue urged in this appeal.

13. In Girish Ramchandra Deshpande's case (supra), the Petitioner therein (Girish) had sought some personal information of one employee working in Sub Regional Office (provident fund) Akola. All the authorities, exercising their respective powers under the Act, declined the prayer for furnishing the information sought by the Petitioner. The High Court in writ petition filed by the Petitioner upheld the orders. Aggrieved by all the order, he filed special leave to appeal in this Court. Their Lordships dismissed the appeal and upholding the orders passed by the High Court held as under:

12. We are in agreement with the CIC and the courts below that the details called for by the Petitioner i.e. copies of all memos issued to the third Respondent, show-cause notices and orders of censure/punishment, etc. are qualified to be personal information as defined in Clause (j) of Section 8(1) of the RTI Act. 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. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the Petitioner cannot claim those details as a matter of right.

13. The details disclosed by a person in his income tax returns are "personal information" which stand exempted from disclosure under Clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information.

14. In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by Respondent No. 1 of individual employees working in the Bank was personal in nature; secondly, it was exempted from being disclosed Under Section 8(j) of the Act and lastly, neither Respondent No. 1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee and nor any finding was recorded by the Central Information Commission and the High Court as to the involvement of any larger public interest in supplying such information to Respondent No. 1.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 22 of 2009

Decided On: 31.08.2017

 Canara Bank Vs.  C.S. Shyam and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Print Page

Whether employee will be entitled to get all service benefits if he is reinstated?

 In Narsa Goud MANU/SC/0027/2003 : (2003) 2 SCC 212 (supra), the issue for consideration was whether a workman can claim to draw increments for the period of out of employment when Labour Court only directed reinstatement with continuity of service but without back wages. Supreme Court observed as under:

"9. We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service."

When the termination order is superseded by a less severe punishment, the said punishment should come into effect from the date of original order of termination. As held by Supreme Court in Deepali Gundu Surwase MANU/SC/0942/2013 : (2013) 10 SCC 324 (supra) 'reinstatement' would mean putting the workman back to the stage when he was terminated. As a consequence to setting aside the order of removal, the petitioner gets back to his position as prevailing on the date of his removal. On such reinstatement, the punishment of removal gets substituted by the punishment of withholding of three annual increments for three years with cumulative effect The annual increments due to the petitioner in the year 2000, 2001 and 2002 stands deferred in view of the Award passed by the Labour Court and after 2002, petitioner is entitled to annual increment after rendering one year satisfactory service. The action of Respondent Corporation in applying the punishment of deferment of annual increments only from the year 2003 is erroneous. It would amount to imposing punishment of withholding six annual increments of the petitioner with cumulative effect. When Labour court prescribed particular punishment to be imposed, no higher punishment can be imposed. The writ petition is disposed of directing the respondents to apply the punishment of withholding of three annual increments for three years with cumulative effect from the date when he was removed from service. Petitioner is entitled to annual increment only after rendering one year satisfactory service after he was reinstated.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

Writ Petition No. 9017 of 2011

Decided On: 27.09.2016

B.S. Raju Vs.  APSRTC and Ors.

Hon'ble Judges/Coram:

P. Naveen Rao, J.

Print Page

Whether pension of an employee can be withheld during pendency of departmental/criminal proceedings?

In   case   of  State   of   Jharkhand   and   others
(supra),  the   Supreme   Court   formulated   the   following
questions for consideration :­
"2. Crisp and short question which arises for
consideration in these cases is as to whether, in
the absence of any provision in the Pension Rules,
the   State   Government   can   withhold   a   part   of
pension and/or gratuity during the pendency of
departmental/criminal proceedings ?”  
7. After   taking   into   consideration,   the   various
expositions on the subject, the Supreme Court in paras 16
and 17 of the judgment held thus :­ 
“16. The fact remains that there is an imprimatur to the
legal principle that the right to receive pension is recognised
as a right in “property”. Article 300­A of the Constitution of
India reads as under: 
“300­A. Persons not to be deprived of property save by
authority   of   law.   ­   No   person   shall   be   deprived   of   his
property save by authority of law.” 
Once we proceed on that premise, the answer to the
question posed by us in the beginning of this judgment
becomes too obvious. A person cannot be deprived of this
pension   without   the   authority   of   law,   which   is   the

constitutional mandate enshrined in Article 300­A of the
Constitution. It follows that attempt of the appellant to take
away a part of pension or gratuity or even leave encashment
without any statutory provision and under the umbrage of
administrative instruction cannot be countenanced. 
17.  It hardly needs to be emphasised that the executive
instructions   are   not   having   statutory   character   and,
therefore, cannot be termed as “law” within the meaning of
aforesaid Article 300­A. On the basis of such a circular,
which   is   not   having   force   of   law,   the   appellant   cannot
withhold even a part of pension or gratuity. As we noticed
above, so far as statutory Rules are concerned, there is no
provision for withholding pension or gratuity in the given
situation. Had there been any such provision in these Rules,
the position would have been different.” 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             
BENCH AT AURANGABAD
WRIT PETITION NO. 2630 OF 2014
PURUSHOTTAM KASHINATH KULKARNI AND OTHERS
V
STATE OF MAHARASHTRA AND OTHERS

CORAM : S.S. SHINDE & P.R. BORA, JJ.
Dated: February 16, 2016
Citation: 2016 (5) ALLMR410

Print Page

Whether doctrine of double jeopardy is applicable to employment law?

The concept of double jeopardy, to some extent, is allergic to service law. The Supreme Court has made it clear in as many cases as one can think of (a) that imposition of a punishment and the denial of promotion did not amount to double jeopardy and (b) that the conviction by a criminal Court and the disciplinary proceedings initiated either on the basis of conduct which led to the conviction or on pure questions of misconduct, did not amount to double jeopardy. Reference in this regard may be had to a Full Bench judgment of the Madras High Court reported in the case of „Manikandan and others vs. Chairman, Tamil Nadu Uniformed Services, Recruitment Board, Chennai and Others‟, (2008) 2 MLJ 1203.

21. Further in the case of „Union of India v. P.D.Yadav‟, (2002) 1 SCC 405, it has been explained as follows:-

"This principle is embodied in the well-known maxim nemo debet bis vexari, (si constat curiae quod sit) pro una et eadem causa meaning no one ought to be vexed twice if it appears to the court that it is for one and the same cause. Doctrine of double jeopardy is a protection against prosecution twice for the same offence. Under Articles 20- 22 of the Indian Constitution, provisions are made relating to personal liberty of citizens and others. Article 20(2) expressly provides that: 'No one shall be prosecuted and punished for the same offence more than once. Offences such as criminal breach of trust, misappropriation, cheating, defamation etc., may give rise to prosecution on criminal side and also for action in civil court/ other forum for recovery of money by way of damages etc., unless there is a bar created by law."

22. In the case of „R.Viswan v. Union of India‟, AIR (1983) 3 SCC 401, the issue of double jeopardy was discussed and, in that case, Government servant was punished for the same misconduct both under the Army Act as well as under Central Government Rules, and it was held that, two proceedings under the Army Act and the Central Government Rules operate in two different fields though the crime or the misconduct might arise out of one and the same Act. The Martial Court proceedings deals with the penal aspect of misconduct while proceedings under the Central Government Rules deals with disciplinary proceedings in respect of the misconduct. Therefore, it was held that it does not amount to double jeopardy.

23. Further, Hon‟ble Supreme Court in case „Sangeetaben Mahendrabhai Patel v. State of Gujarat‟, (2012) 7 SCC 621, discussed this principle and same runs as follows:-

"if an issue of a fact is decided in favour of an accused, it would not bar trial or conviction of the accused for a different and distinguished offence but it precludes acceptance of evidence to disturb the said finding of the fact. Thus, the principle of estoppel and resjudicata are applicable only to admissibility of evidence in subsequent trial and not to the trial itself for distinct and different offence."

24. In the case in hand, by order dated 27th September, 1994, the petitioner was imposed with penalty of stoppage of four annual increments with cumulative effect. The second order terminating his services was passed on 20th July, 2001 keeping in view Section l0(1)(b)

(i) of Banking Regulation Act, 1949. When a major penalty is proposed to be imposed upon a person on the ground of conduct which led to his conviction on a criminal charge, to my mind, there was no question of the petitioner suffering a double jeopardy. Reliance may be placed to the judgment in the case of „State of Haryana v. Balwant Singh', (2003) 3 SCC 362, wherein Hon‟ble Supreme Court observed as under:-

"The respondent was a bus-driver under Haryana Roadways. In an accident caused by his rash and negligent driving, one person died and another was injured. An award passed by the Motor Accidents Claims Tribunal in that matter resulted in the loss of a huge sum to the State. Consequently, a departmental enquiry under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 (for short "the Rules") was initiated against him and ultimately by an order dated 12-3-1990 punishment of reduction of pay to the minimum of the pay scale was imposed on him. On account of causing the same accident, he was convicted by a court under Section 340-A IPC. Based on that conviction, the Department by an order dated 17-9-1992 terminated his services. His suit challenging the termination order, though initially unsuccessful, was in second appeal decreed by the High Court only on the ground that an employee could not be punished twice for the same offence in view of Article 20(2)."

Allowing the States appeal, the Supreme Court Held:

"The High Court was not right in equating the departmental enquiries held on different grounds to prosecution in a criminal case. The High Court also has failed to see that the two orders passed against the respondent were on different grounds and were on different cause of actions."

25. The cause of action for both the proceedings are different. Therefore, having regard to the judgments referred to above, it cannot be stated that the subsequent order of dismissal amounts to double jeopardy.

Delhi High Court

Dashrath Singh vs Andhra Bank & Ors. on 10 May, 2016

Author: V.P.Vaish

  W.P.(C) 3149/2002

Print Page

Whether an employee can be dismissed from service on ground that offence is registered against him?

In the present case after a show cause notice was given to the petitioner and his reply was received, the Gram Panchayat passed a resolution resolving to dismiss the petitioner from services. There was no reasonable opportunity granted to the petitioner to justify his defence before dismissing him from service. There was no opportunity to putforth his explanation before said action was taken. Though provisions of Section 61(1) empower the Gram Panchayat to dismiss any servant, said power cannot be exercised in a manner that gives a go bye to the principles of natural justice. There is no power with the Gram Panchayat to dismiss a servant merely on the ground that an offence has been registered against him. Mere registration of an offence in these facts by itself cannot be treated as a reason for dispensing with holding of an enquiry whatsoever especially when the services of a servant were sought to be dismissed. In State of UP and another Vs. Ram Vinayak (2010) 15 SCC 305, an Assistant Engineer in the Irrigation Department was appointed on ad hoc basis and his services were subsequently regularized. Thereafter an offence under Section 5(2) of the Prevention of Corruption Act, 1947 was registered against him. The State Government terminated his services on the ground that same were not required. It was held by the Hon'ble Supreme Court that the termination of services was sought to be justified on the ground that he was found unsuitable in view of a criminal case being registered against him. It was held that same was not termination simplicitor and in absence of any opportunity of being heard, the order of termination was in violation of principles of natural justice. Said order was accordingly set aside.

Bombay High Court

Ashok Govindrao Sardar (Water ... vs The Chief Executive Officer, Z.P. ... on 29 January, 2016

Bench: A.S. Chandurkar

WRIT PETITION NO.2395 OF 2015

Citation:2016(2) ALLMR 413

Print Page

What will be effect of non-impleadment of necessary party in the matter when selection process is assailed ?

 In Public Service Commission, Uttaranchal v. Mamta Bisht & Ors.[9] this Court while dealing with the concept of necessary parties and the effect of non-impleadment of such a party in the matter when the selection process is assailed observed thus: -

“7. ……. In Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar & Anr., AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter called CPC) provide that non-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141, CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat; AIR 1965 SC 1153; Babubhai Muljibhai Patel v. Nandlal, Khodidas Barat & Ors., AIR 1974 SC 2105; and Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior & Ors. AIR 1987 SC 88).

8. In Prabodh Verma & Ors. v. State of U.P. & Ors. AIR 1985 SC 167; and Tridip Kumar Dingal & Ors. v. State of West Bengal & Ors. (2009) 1 SCC 768 : (AIR 2008 SC (Supp) 824), it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties.”

Supreme Court of India

Vijay Kumar Kaul & Ors vs U.O.I. & Ors on 25 May, 2012

Bench: B.S. Chauhan, Dipak Misra

            CIVIL APPELLATE JURISDICTION

     CIVIL APPEAL No. 4986-4989 OF 2007

Print Page

Whether there is violation of fundamental right of public servant when permission given to do him to undertake newspaper journalism is revoked?

 As regards the reliance placed by the learned Counsel for
the petitioner on the decisions of the Supreme Court in Indian Express
Newspaper Bombay Pvt. Ltd. (supra) and Life Insurance Corporation
of India (supra), the fundamental right as conferred by Article 19(1)(a)
of the Constitution of India is not to be lightly interfered with and the
same is subject only to reasonable restrictions placed under Article 19(2)
thereof. In the present case, however, the privilege that was granted to
the petitioner was withdrawn as the same affected his teaching duties in
the opinion of the Municipal Council. This opinion was on the basis of
the report of the Headmaster. The Municipal Council acted within its
powers when it withdrew the privilege conferred on the petitioner to
undertake newspaper reporting as the same affected his teaching duties.
The petitioner who was a servant of the Municipal Council was duty

bound to satisfactorily discharge his duties. If the Municipal Council
formed an opinion on the basis of material available with it that
newspaper reporting was affecting the teaching duties of the petitioner,
it was within its jurisdiction to withdraw the privilege conferred by it. In
the present case, it can only be said that during the course of
employment, the Municipal Council did not permit the petitioner to
undertake newspaper journalism as the same affected his teaching
duties. By doing so, it cannot be said that the Municipal Council has in
any manner violated the petitioner’s fundamental right conferred by
Article 19(1)(a) of the Constitution of India.
19. Thus viewed, it cannot be said that the impugned action
withdrawing permission is either illegal or arbitrary. The petitioner
being in employment of the Municipal Council was bound to discharge
his duties to the satisfaction of his master. Moreover, as a consequence
of withdrawing said permission, the petitioner’s entitlement to continue
in employment was not under any threat. It is, therefore, merely a case
of withdrawal of privilege that was conferred on the petitioner by the
Municipal Council. Hence, the challenges as raised cannot be accepted.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6590 OF 2013
Anil Harishchandra Kadu, V  Additional Commissioner,

CORAM: A.S. CHANDURKAR, J.

DATED: 19-12-2014
Citation;2015(2) MHLJ 127

Print Page

When charge of misbehaviour with female employees is not proved?

The charges 

levelled   against   the   petitioner   were   that   he   misbehaved   with   the   female 
employees working in the department and the behaviour of the petitioner with 
the female employees was improper. 
After hearing the learned advocates for the respective parties and 
examining the record, particularly, the report submitted by the Enquiry Officer, I 
find that the report submitted by the Enquiry Officer is as vague as it could be 
and it cannot be said that there is any finding recorded by the Enquiry Officer 
which brings home the alleged guilt of the petitioner.  There is no justification on 
the record as to why the complaint about the alleged incidents was made after 

the period of 7 or 8 years.   The Enquiry Officer has found that the statements 
given by some of the witnesses examined during the enquiry are not supported 
by  the   statements   of the   other  witnesses  or  there  are  contradictions.       I  am 
conscious that the charges against the delinquent in the departmental enquiry 
are required to be considered on the basis of the theory of preponderance of 
probabilities and it is not necessary that the parameters applicable in criminal 
trial are required to be applied.   However, the employee cannot be deprived of 
his   legal   right   of   continuing   in   the   employment   on   the   basis   of   motivated 
complaints without examining the truthfulness of the allegations made against 
the employee.  Moreover, the Enquiry Officer is required to give definite finding 
after considering the material on the record that the charges levelled against the 
delinquent are proved.    In the present case, the Enquiry Officer has not been 
able to bring home the alleged guilt for which the petitioner was charged and 
therefore, he has recorded that charges 1 and 2 are partly proved against the 
petitioner.  

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

Dhanraj s/o Nankuprasad Gupta V  Public Works Department, 

CORAM  :  Z.A. HAQ, J.
DATE  :     12.11.2014
Citation;2015(2) MHLJ 351

Print Page

What will be duty of employer towards employee when situation is abnormal?

Normally, an employer owes no duty of care for the safety of his employee while the employee is proceeding to the place of employment from his house. The point, however, is whether the same rule prevails when the situation is abnormal and when as a result of outbreak of violence in the city, the law enforcement authorities promulgate curfew order requiring citizens to be within doors as the only means which can reasonably ensure their safety. In such a situation, when every citizen is expected to be within doors as a matter of safety, if an employer requires his employee, to come to the place of employment in early hours of the morning, it is reasonably foreseeable that the employee is likely to suffer injury at the hands of some ruffian while on the way to join his work unless adequate arrangements are made by the employer for the safety of the employee. Requiring an employee to come to work in such a situation is itself such an act from which harm to the employee is forseeable and the employee being closely and directly connected with the act of requiring him to join his work, the employer must have his safety in contemplation. On the principles enunciated by Lord Atkin in Donoghue v. Stevenson (quoted earlier) the employer must, in the circumstances prevailing in the instant case, be held to owe a duty of care to the employee while he was on his way to the place of work. The employer should have taken adequate care for the safety of the employee while he was on his way either by providing safe transport or some persons to accompany and guard him. In case it was not possible for the employer to make any arrangement for the safety of the employee, the employer should have temporarily closed down the business, as the only alternative of avoiding harm to the employee. It has also to be kept in view that the employee, in the instant case, unlike a police constable or a fireman, was not in such an employment where it was expected of him from the nature of employment to face the hazard of a riot.

Madhya Pradesh High Court

Madhya Pradesh State Road ... vs Mst. Basantibai And Ors. on 30 April, 1971

Equivalent citations: (1971) IILLJ 273 MP

Bench: S Bhargava, G Singh

Print Page