Absent, Not Absconding: Rajasthan High Court Holds That Illness-Driven Absence Cannot Cost a Government Servant His Job — Even After Death

 

A widow's decade-long legal battle ends with the Court holding that "unauthorized absence" is not the same as "willful absence," and that denial of an enquiry report is fatal to a dismissal order.

Case Snapshot

Particular	Detail
Case title	Heera Mani vs. State of Rajasthan & Anr.
Case number	D.B. Special Appeal Writ No. 1349/2011
Court	High Court of Judicature for Rajasthan at Jodhpur
Bench	Hon'ble Chief Justice Sanjay K. Agrawal and Hon'ble Justice Vinit Kumar Mathur
Date of judgment	16.09.2026
Citation	[2026:RJ-JD:44608-DB]
Order under appeal	Judgment dated 11.12.2008 in S.B. Civil Writ Petition No. 2021/2001

 Read full judgment here: Click here.

Background: A Constable, Tuberculosis, and Six Charges

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Is a government servant entitled to 100% back wages if acquitted for cruelty upon his wife upon compromise?

 

 In the present case, respondent is not acquitted on merits. His

acquittal is attributable to compromise with his wife. Petitioner-State therefore cannot be saddled with the liability to pay salary and allowances during the period when respondent remained under dismissal. He incapacitated himself from performing duties owing to his conviction. It is also pertinent to note that respondent’s conviction was upheld even by the appellate court. This further prolonged the period of his dismissal. in such

circumstances it is highly debatable whether any back wages were payable to Respondent. Nonetheless the State Government decided to pay 50% salary and allowances to him during the intervening period. However, to expect payment of 100% salary and allowances during that period would be highly undesirable. Respondent had involved himself in a criminal case arising out of his private affairs unconnected with performance of his duties.

He kept himself away from his duties on account of his conviction. In such circumstances there is no question of payment of full salary and allowances to the respondent. {Para 16}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE CIVIL JURISDICTION

WRIT PETITION NO. 2470 OF 2018

The State of Maharashtra  Vs Shri Surendra G. Ghodake 

CORAM : S. V. GANGAPURWALA, ACJ &

SANDEEP V. MARNE, J.

DATE : 8th MARCH, 2023.

JUDGMENT : (PER - SANDEEP V. MARNE, J.)

Citation: 2023 Lawweb (Bom HC ) 14.

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Can the court set aside the order of Compulsory Retirement if it Was Passed To Circumvent Disciplinary Proceedings?

 Dehors the aforesaid allegations of institutional bias and malice, having perused the material placed on record, we find merit in the other grounds taken by the appellant. It is noticed that though FR 56(j) contemplates that the respondents have an absolute right to retire a government servant in public interest and such an order could have been passed against the appellant any time after he had attained the age of fifty years, the respondents did not take any such decision till the very fag end of his career. The impugned order of

compulsory retirement was passed in this case on 27th September, 2019 whereas the appellant was to superannuate in ordinary course in January, 2020. There appears an apparent contradiction in the approach of the respondents who had till as late as in July, 2019 continued to grade the appellant as ‘Outstanding’ and had assessed his integrity as ‘Beyond doubt’. But in less than three months reckoned therefrom, the respondents had turned turtle to arrive at the conclusion that he deserved to be compulsorily retired. If the appellant was worthy of being continued in service for little short of a decade after he had attained the age of 50 years and of being granted an overall grade of 9 on the scale of 1 - 10 on 31st July, 2019 it has not been shown as to what had transpired thereafter that made the respondents resort to FR 56(j) and invoke the public interest doctrine to compulsorily retire him with just three months of service left for his retirement, in routine. In such a case, this Court is inclined to pierce the smoke screen and on doing so, we are of the firm view that the order of compulsory retirement in the given facts and circumstances of the case cannot be sustained. The said order is punitive in nature and was passed to short-circuit the disciplinary proceedings pending against the appellant and ensure his immediate removal. The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public. {Para 39}

40. In view of the above discussion, it is deemed appropriate to reverse the impugned judgment dated 31st May, 2022 and quash and set aside the order dated 27th September, 2019 passed by the respondents, compulsorily retiring the appellant. Resultantly, the adverse consequences if any, flowing from the said order of compulsory retirement imposed on the appellant, are also set aside. 

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 6161 OF 2022;

CAPTAIN PRAMOD KUMAR BAJAJ Vs UNION OF INDIA AND ANOTHER

Coram: A.S. BOPANNA; J., HIMA KOHLI; J. 

Author: HIMA KOHLI, J.

Dated:  MARCH 03, 2023 

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Whether principle of estoppel can override the law?

 It is settled principle that principle of estoppel cannot override the law. The manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence.

31. Further in the case of Tata Chemicals Ltd. Vs. Commissioner of Customs (preventive), Jamnagar8, it has been laid down that there can be no estoppel against law. If the law requires something to be done in a particular manner, then it must be done in that manner, and if it is not done in that manner, then it would have no existence in the eye of the law. 

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

 Civil Appeal Nos. 45784580 of 2022 

KRISHNA RAI (Dead) THROUGH LRs & ORS. Vs BANARAS HINDU UNIVERSITY THROUGH REGISTRAR & ORS.

Coram: DINESH MAHESHWARI; VIKRAM NATH, JJ. 

Author: Vikram Nath, J.

Dated: JUNE 16, 2022

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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

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Whether nomination made by an employee can be treated as his will and curtail the right of legal heirs to claim a share in his service benefits?

 The purpose of taking a nomination by an employer is to relieve itself of the obligation to pay the benefits, irrespective of the right of a person who is entitled in law to the Fund. Nomination, in law, cannot be construed as a “Will” of the employee and cannot be treated as a testamentary disposition of the deceased employee with an intent to bestow the benefits on the heirs. Every employee has a right in law to decide how his movable assets should be treated and disbursed in the event of his death

and nomination cannot circumscribe the legal rights of disposition of the assets. The purpose of nomination is only to benefit a custodian so as to enable him to know how and to whom he has to hand over the assets, protecting him from litigations and multiplicity of cases from different people, claiming to be successors to the interest of the employee. Thus,

the liability of the employer / custodian is discharged by disbursing the funds to the ‘nominee’ and thereafter if there is an inter-se disputes between the lawful heirs, they could resort to appropriate remedies for identification of their shares. The concept of appointing a nominee therefore is only to ensure that the amounts are disbursed at the earliest to the nominee and this becomes significant as there may be occasions where it may take time for the legal heirs to resolve their disputes and in the meantime the trustee / Custodian Company or any other Institution may go into liquidation or any other contingency may arise making it difficult to realize the retiral and other dues.

 Whenever provident fund amount is

disbursed the custodian of the fund is anxious to have a good

discharge against all claims from whomsoever claiming

through the member. The Rules nowhere provide that the

nomination is to be construed as a will by the member. If a

nomination is to be taken as a final disposition made by the

member as to how it should be taken by his heir on his death, it

would lead to anomalies, because till the member dies, the

nominee acquires no right to claim the amount. The legal right

of a member to decide from time to time as to how his assets

should be taken consequent to his death, cannot be frozen by a

nomination given, as part of his service conditions. His legal

rights about disposition of his assets cannot be circumscribed

by such nomination, 11 he is to execute a “Will” later on,

contrary to the nomination that has been made earlier, the

terms and conditions of the ‘will’ alone can prevail, and so far

as the trustees of the fund are concerned, their obligation will

be fully discharged by paying it to the nominee, who will in turn

be liable to hand over the funds to the persons entitled to as per

the ‘Will’. In case of intestate succession, the nominee is bound

to hand over the amounts to the heirs of the deceased. The main

purpose of nomination is intended to benefit

 the custodianstrustees

of the fund to know as to how or to whom they should

hand over the amounts and need not make themselves

answerable to multiplicity of claims from different persons

claiming to succeed to the interests of the deceased member. If

there is no nomination, the custodian of the fund cannot decide

as to who are the lawful heirs to succeed and they will have to

wait for a Court order to be produced, and unless finality is

reached, therein, the disbursement of the fund will be delayed

Funds, like the provident fund, in the case of State or other

public institutions, may be sufficiently safe-guarded even if

there is to be a delay in disbursement. But in cases of other

institutions, if the amounts are not immediately disbursed on

the basis of nomination, and before proceedings in Court are

over, if for any reasons, the Companies or institutions are

liquidated, the contributions made by a member of such bodies,

will not enure to the benefit of the legal heirs till finality is

reached in Court proceedings unless the amount is deposited in

Court at the earliest stage. The concept of nomination has been

thought of to achieve the disbursement of the amounts at the

earliest point of time to the nominee, who will be answerable to

claims made by those who are entitled to the amount lawfully.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 6701/2018 and C.M. Nos.25451/2018, 41307/2019 and

11129/2020

SUMAN KUMARI @ SUMAN SINGH  Vs  NAND KISHOR & ORS 

CORAM: HON'BLE MS. JUSTICE JYOTI SINGH

Pronounced on: 06.11.2020

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Whether School tribunal has jurisdiction to decide a dispute relating to a private school teacher's resignation?

  In view of the aforesaid judgment of the Supreme Court

in the case of Shashi Gaur (supra), in my opinion, there can

be no doubt that once a teacher/employee of a school takes

up a case that she has been illegally removed, this aspect

very much falls within the jurisdiction of the Tribunal. The

mere fact that in determining this issue the Tribunal has

also to consider that whether or not the teacher or employee

has resigned or not cannot mean that Tribunal will have no

jurisdiction because it is only on arriving at a conclusion

that there is no valid resignation, would thereafter the

Tribunal arrive at a decision of illegal removal of a

teacher/employee of a school. Surely, a teacher/employee

who is illegally removed, will naturally approach the

Tribunal as per the ratio of the Supreme Court in the case

of Shashi Gaur (supra), and surely the defence which is laid

out by the school to justify the action of the school would

not mean that the issue will not remain that of removal of

the teacher/employee from the school. In fact, it is reiterated

that it is because of the assertion of the respondent no. 1

that she has been illegally removed from the school, and

which case has been accepted by the Tribunal, that the

impugned judgment has been passed in favour of

respondent no. 1 and against the petitioner.”{Para 4}

22. In fact in the case of Daya Nand (supra) the Court was confronted

with the question of maintainability of an appeal before the Tribunal

where the Petitioner had resigned and even in that context the Court held

that since resignation was one of the modes of cessation of service, it

would be within the purview of the Tribunal under Section 8(3) of the

Act to adjudicate the issue. In a recent judgment in GD Goenka Public School and Ors. vs. Vinod Handa and Ors. 262 (2019) DLT 154, a Coordinate Bench of this Court has taken a similar view and relegated the Petitioner to the remedy of an appeal before the Tribunal, as the challenge was to an order of resignation.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 W.P.(C) 6975/2020 and CM Nos.23831/2020 and 23832/2020

SANDHYA BINDAL  Vs  STATE OF NCT OF DELHI 

CORAM:

HON'BLE MS. JUSTICE JYOTI SINGH

Pronounced on: 24.11.2020

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Is the employer liable to pay interest to the employee if he withholds his leave encashment without specific order?

  We, accordingly, allow the petition partially by directing

the respondent to pay the petitioner his leave encashment dues

along with interest at the rate of 8% per annum from the date

the same became due, till payment.”{Para 11}

15. Another Division Bench of this Court in Prem Nath (supra)

dealing with a similar issue in the context of Rule 39 (3) of the CCS (Leave) Rules, 1972 held as under:-

“7. It is undisputed that the respondent retired from service on

31.08.2010 on attaining the age of superannuation and that at

the time of his retirement, or immediately thereafter, leave

encashment was not released to him. There is also no dispute

on the proposition that leave encashment can be withheld under

Rule 39 (3) of CCS (Leave) Rules, 1972, if at the time of

retirement, an employee is under suspension or disciplinary or

criminal proceedings are pending against him. However, a

reading of the said provision clearly shows that in order to

withhold the leave encashment in whole or in part, the authority

competent to grant leave has to pass an order specifically

withholding the encashment, if in its view there is a possibility

of some money becoming recoverable from the employee on

conclusion of the proceedings against him. 

8. Learned counsel for the respondent vehemently submitted

that no such order was passed by the competent authority and

the learned counsel for the petitioners was not able to rebut the

said fact. Consequently, the petitioners herein could not have

withheld the leave encashment and the money ought to have

been released to the respondent soon after his retirement. We

also do not agree with the submissions of the learned counsel

for the petitioners that only because there is no Rule for grant

of interest of leave encashment, the respondent would not be

entitled to the same. Learned counsel has not been able to point

out any rule to the contrary, which creates a bar for grant of

interest in case due amount is released after a considerable

delay. It has been clearly held by the Apex Court in several

judgments including S.K.Dua vs. State of Haryana & Anr.,

(2008) 3 SCC 44 that if there are Statutory Rules or

Administrative Instructions occupying the field, an employee

could claim payment of interest relying on such rule, but even

in the absence of any Statutory Rules or Administrative

Instructions or Guidelines, an employee can claim interest

under Part-III of the Constitution relying on Articles 14, 19 and

21 of the Constitution of India. In this regard, we also rely on a

decision passed by the Division Bench of this Court in Writ

Petition (C) No.1186/2012, titled as ‘Government of NCT of

Delhi vs. S.K.Srivastava’. This judgment also supports our view

that if no order is passed under Rule 39(3) of Leave Rules, the

leave encashment cannot be withheld. The fact of the matter is

that the petitioners are retaining the money of the respondent

from the year 2010 to 2015 and the respondent is, thus, clearly

entitled to interest on the delayed payment. Interest is awarded

to compensate the recipient for the falling value of money due

to inflation. In so far as, the plea of the petitioners that serious

cases were pending against the respondent and, therefore, the

leave encashment was not released is concerned, the same has

no merit either. Although neither the petitioners nor the

respondent have been able to throw any light on the status of

the criminal and disciplinary proceedings as of today, however,

if this was the reason for withholding the leave encashment

then the same status continues perhaps even today. The reason

given for releasing the leave encashment in 2015 is an order

passed by the Public Grievances Commission. We fail to

understand that if the petitioners were withholding the leave

encashment due to pending proceedings then they had the

remedy of not implementing the order of the Public Grievances

Commission. However, having complied with that order and

released the leave encashment, the petitioners cannot be heard

to say that the leave encashment was withheld due to pending

proceedings. Learned tribunal has, thus, rightly come to

conclusion that the respondent deserves interest at the GPF

rate for the delayed payment of leave encashment.”

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 3114/2020 & CM 10817/2020

SH. S.B. SINGH Vs NATIONAL TEXTILE CORPORATION 

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Whether the employer can refuse to pay the amount of provident fund and leave encashment to the employee if he had issued the charge sheet of departmental enquiry to him after retirement?

  With respect the Provident Fund reliance is placed on the

judgement of the Supreme Court in Gorakhpur University & Ors. vs. Dr. Shitla Prasad Nagendra & Ors., (2006) 6 SCC 591, wherein the Court held that terminal benefits including Provident Fund cannot be withheld and the same are immune from attachment, deduction or adjustment even against any of the dues from the employee. To the same effect is the

decision of the Division Bench of the Bombay High Court in Ramdas Govind Bakhle vs. Maharashtra State Financial Corporation (2000)SCC OnLine Bom 9, wherein the Court relying on Bhagirathijena vs. Board of Directors, Orissa State Financial Corporation & Ors., (1993) 3 SCC 666, held that no amount from the Provident Fund of an employee can be deducted in the absence of service Regulations providing so and

the Court directed the Respondent therein to release the Provident Fund of the Petitioner.{Para 7}

13. A perusal of the provisions of Rule 7.7 makes it evident that before the Competent Authority can withhold the Leave Encashment of an employee, wholly or partly, a conscious decision must be taken to withhold the Leave Encashment due to the employee on account of there being a possibility of some money becoming recoverable from him, once the Disciplinary Proceedings conclude.

14. While interpreting the said Rule, the Division Bench held as

follows:-

“10. The aforesaid Rule would show that the competent

authority may wholly or partly, withhold leave encashment in

respect of a Government servant who retires on attaining the

age of superannuation, while under suspension or while

undergoing disciplinary or criminal proceedings, provided the

competent authority is of the view that there is a possibility of

some money becoming recoverable from him on the conclusion

of proceedings against him. In the present case, the respondents

have not produced any order to show that a conscious decision

has been taken by the Government to withhold the leave

encashment due to the petitioner upon his retirement, on

account of there being a possibility of some money becoming

recoverable from him on the conclusion of proceedings against

him. The nature of the charge levied against the petitioner also

does not support the withholding of the leave encashment. We

cannot agree with the submissions of learned counsel for the

respondents that if the charge against the petitioner is proved,

it could also have the effect of nullifying the examination

process in which the petitioner is alleged to have manipulated

the marks of some of the candidates. Pertinently, the said

examination took place in the year 2010. It is not the

respondent’s case that any of the successful candidates have

been put to notice in this regard. It is not claimed that the said

examination process has been assailed by any unsuccessful

candidate on account of the alleged misconduct of the

petitioner, or that the same has been set aside, or the challenge

is still pending. We are, therefore, of the view that withholding

of leave encashment of the petitioner is not justified.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 3114/2020 & CM 10817/2020

SH. S.B. SINGH Vs NATIONAL TEXTILE CORPORATION 

CORAM: HON'BLE MS. JUSTICE JYOTI SINGH

Pronounced on: 17.11.2020

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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

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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

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When should disciplinary enquiry be set aside on violation of principles of natural justice?

1) While examining whether procedural requisites have been met, by the authorities below, however, the test of "prejudice" must apply; breach of procedure, which does not result in prejudice, to the officer employee concerned, is not to be treated as fatal. Though, ordinarily, the onus to establish prejudice, is on the officer, or employee so alleging, the writ court may, justifiably, in some circumstances, infer the existence of prejudice - such as inordinate or unconscionable delay in issuance of a charge-sheet, denial of adequate opportunity, to the employee to defend the charges against him, reliance on material undisclosed to the employee, and the like. Whether, in a given case, prejudice has resulted, or not, is not an issue for which straight-jacketed tests are available; ultimately, this is a matter in which the writ court has to exercise its best judgment.

2) The Enquiry Report, dated 16th March, 1999, of the EO, rejected the petitioners request for being provided copies of the above mentioned documents, not on the ground that the documents did not exist, but because "they had no relevance in the present enquiry because the enquiry pertains to a period when the Agency of Shri Yugal Gupta was fully functioning under Shri Midha and there is no base to prove or contest the origin of the agency". To my mind, this finding of the Enquiry Officer, and the decision of the Enquiry Officer to deny, to the petitioner, the documents sought by him, are manifestly violative of the principles of natural justice, and also suffer from perversity. The observation, of the EO, that "the enquiry pertains to a period when the agency of Shri Yugal Gupta was fully functioning under Sh. Midha and there is no base to prove or contest the origin of the agency", in fact, itself negates the allegation, in the charge-sheet, that Yugal Gupta was a dummy agent. In observing thus, the EO impliedly accepts the fact that an agent, by name Yugal Gupta was, in fact, working with the respondent. This observation, in fact, takes the wind away from the sails, as it were, of the most fundamental allegation in the charge-sheet, as levelled against the petitioner. Besides, the observation is clearly perverse, as it fails to notice - intentionally or otherwise - the fact that the charge-sheet against the petitioner was premised on the assumption that Yugal Gupta, into whose account agency commission was paid and, subsequently, misappropriated by the petitioner, was a dummy/fictitious agent. It is impossible to understand, therefore, how the EO held that there was "no base to prove or contest the origin of the agency". The EO had, therefore, either not even understood the Government of the allegations against the petitioner, or was determined not to allow documents to the petitioner, on one ground or the other.

(vi) The inequity inherent in the above approach of the EO is underscored by the fact that as many as ten documents were permitted to be produced by the respondent-Management. The EO, thereby, ensured that the petitioner would not be provided with a level playing field, which is the sine qua non of due process and fair play.

(vii) In the opinion of this Court, ordinarily, documents sought by a charged officer, the providing of which lies within the power of the management/establishment, ought to be provided to him. The EO is not, ordinarily, expected to sit in appeal over the decision of the charged officer, regarding the documents which, according to him, are necessary for his defence. Of course, if it does not lie within the province of the management, to provide the said documents, or if the request for documents is found to be manifestly unreasonable, or a deliberate attempt to protect, or otherwise frustrate, the disciplinary proceedings, the request for providing documents may be denied. In such an event, however, the precise reason for denying the said request would necessarily have to find place in the Enquiry Report. The reasons cited by the EO, in the Enquiry Report, dated 16th March, 1999, in the present case, i.e., that the documents, requested by the petitioner, were not relevant to the enquiry, conveniently omits to notice the fact that the documents were, in fact, extremely necessary, for the petitioner to be able to establish the points raised, by him, in his defence. They cannot, therefore, sustain.

3) In Hardwari Lal v. State of U.P. MANU/SC/0685/1999 : (1999) 8 SCC 582, the Supreme Court declared the entire disciplinary enquiry, against the appellant, before it, to be vitiated on the sole ground that two relevant witnesses had not been produced in the witness-box. There is no reason why this principle would not apply, even in a case in which the charged officer is prevented from producing evidence, of witnesses relevant for his defence. The wholesale rejection, by the EO, of the request, of the petitioner, to lead the evidence of the said persons, with no reason, therefor, being forthcoming, has also, therefore, necessarily to be regarded as arbitrary and violative of the principles of natural justice.

4)  There is no explanation therefor. Even more significantly, there is no explanation for why the respondent did not choose to lead the evidence of the said allegedly "fictitious" Yugal Gupta, as a Management Witness. In Hardwari Lal MANU/SC/0685/1999 : (1999) 8 SCC 582, as already noted hereinabove, the Supreme Court declared the entire disciplinary enquiry, against the appellant, before it, to be vitiated on the sole ground that two relevant witnesses had not been produced in the witness-box.

5) The onus to establish that the petitioner had committed misconduct was, unquestionably, on the respondent. Absent discharge of such initial onus, the petitioner could not be burdened with the responsibility of defending himself against the allegations. The petitioner was also entitled to be extended all due opportunity, and to the benefit of the principles of natural justice and fair play.

IN THE HIGH COURT OF DELHI

W.P. (C) 7593/2002

Decided On: 29.05.2020

Rakesh Midha  Vs.  Oriental Fire Insurance Co. Ltd.

Hon'ble Judges/Coram:

C. Hari Shankar, J.

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Supreme Court:Employee can not be held guilty for unauthorized absence from duty if absence is due to compelling circumstances

The question whether 'unauthorized absence from duty' amounts to failure of devotion to duty or behavior unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be willful.

18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a Government servant.

19. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2106 of 2012 

Decided On: 15.02.2012

Krushnakant B. Parmar  Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

G.S. Singhvi and S.J. Mukhopadhaya, JJ.

Citation: (2012) 3 SCC 178

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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

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Whether act of forgery amounts to minor or technical misconduct under service law?

 This Court concluded that item 1(g) would be attracted only if
the misconduct appears to be of a minor or technical character. In
my view, an act of forgery, notwithstanding the fact that the
concerned employee, could not derive advantage of his act upon
being apprehended by the employer, does not render the act to be of
a minor or technical character. It is immaterial whether the
employee succeeded in getting the advantage of an act of forgery.
Had he not been apprehended, he would have succeeded in reducing
his age by four years and thereby, would have increased his service
age / tenure by four years.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8747 OF 2012
WITH
CIVIL APPLICATION NO. 10732 OF 2016
The Chief Executive Officer,
The Ahmednagar District Central
Cooperative Bank Limited,
V
Prakash Ramchandra Waghmare,

CORAM : RAVINDRA V. GHUGE, J.
Dated: August 02, 2016
Citation:2016(5) ALLMR240

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What will be effect if employee makes delay in making claim for seniority?

 From the aforesaid pronouncement of law, it is manifest
that a litigant who invokes the jurisdiction of a court for claiming
seniority, it is obligatory on his part to come to the court at the
earliest or at least within a reasonable span of time. The belated
approach is impermissible as in the meantime interest of third
parties gets ripened and further interference after enormous
delay is likely to usher in a state of anarchy.
 The acts done during the interregnum are to be kept in
mind and should not be lightly brushed aside. It becomes an
obligation to take into consideration the balance of justice or
injustice in entertaining the petition or declining it on the ground
of delay and laches. It is a matter of great significance that at
one point of time equity that existed in favour of one melts into
total insignificance and paves the path of extinction with the
passage of time.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL No. 4986-4989 OF 2007
Vijay Kumar Kaul and others 
Versus
Union of India and others 
Dated:May 25, 2012
 Dipak Misra, J.

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Whether previous remark of dishonesty is washed off by subsequent promotion?

The Honble Apex Court in the case of Badrinath Vs. Government of Tamil Nadu and others, (2000) 8 SCC 395 had an occasion to deal with the washing off theory. It was held that if adverse remarks relate to a period, prior to an earlier promotion, they indeed can be treated as having lost their sting and being rendered weak subject to the rider that if they relate to dishonesty or lack of integrity, they can be considered to have not lost their strength fully so as to be ignored altogether (emphasise mine).

In the context of enunciation by the Honble Apex Court, the fact of the instant case indicate that the petitioner's misconduct for tampering with a certificate issued by the respondent Bank's Jaipur Office in a departmental enquiry culminated in punishment and placing him in the lowest rank of the pay scale. The misconduct pertained to the dishonesty of the petitioner and would not cease to be relevant for assessment of his suitability for promotion from Class-IV to the post of Assistant Care Taker in the Class-III cadre of the Bank even subsequent to his promotion within Class-IV service. 

Rajasthan High Court at Jaipur Bench

Patel Ram Meena vs . Reserve Bank Of India Through ... on 27 July, 2015

S.B. Civil Writ Petition No. 1784/2015

HONBLE MR. JUSTICE ALOK SHARMA

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Supreme Court: Employee is not entitled to get increment when he is suspended

Increment has a definite concept in service law jurisprudence. It is an increase or addition on a fixed scale; it is a regular increase in salary on such a scale. As noted in SBI v. Central Government Labour Court, (1972) 3 SCC 595, under the labour and industrial laws, an increment is when in a timescale of pay an employee advances from the lower point of scale to the higher by periodic additions. In other words, it is addition in the same scale and not to a higher scale. An increment is an incidence of employment and an employee gets an increment by working the full year and drawing full salary. During the period of suspension, the contract of service remains suspended. The order of suspension by the departmental enquiry has the effect of temporarily suspending the relations between the master and servant with the consequence that the servant is not bound to render service and, therefore, an employee is not entitled to increments during this period which is taken as period not spent on duty.

IN THE SUPREME COURT OF INDIA

C.A. No. 5523 of 2013 (@ SLP(C) No. 9338 of 2012)

Decided On: 17.07.2013

State of Punjab Vs. Jaswant Singh Kanwar

Hon'ble Judges/Coram:H.L. Dattu and Dipak Misra, JJ.

Equivalent Citation:(2014)13 SCC 622

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'Beasts in disguise' should not be in government service: Delhi High Court

New Delhi: Delhi High Court has passed stringent strictures against a government employee while junking his plea challenging downgrading of his rank for sexually harassing two women family members of a female peon, saying "beasts in disguise" should not be in public service.

"People with upright moral values and integrity should only make way into public service and not those who are beasts in disguise," a bench of justices Kailash Gambhir and I S Mehta said while also imposing a penalty of Rs 50,000 on the government servant, SK Jasra.

Jasra's rank was downgraded in 2012 from Joint Director in the Directorate of Pay, Pension and Regulations in Defence Ministry to that of Deputy Director on grounds of harrassing the daughter and daughter-in-law of a lady peon who was also a widow.

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Whether government employee can be kept suspended for more than three months if not formally informed about the charges?

In a remarkable judgment in service law jurisprudence, a two judge bench of the Supreme Court has held that a government employee cannot be kept suspended for more than three months if not formally informed about the charges. However, the charges under departmental proceedings may continue even after revocation or reinstatement to the job.

Based on the principle of human dignity and the right to speedy trial, the landmark verdict will affect a huge bunch of government employees across the country, many of whom are under suspension for years pending departmental proceedings. The praiseworthy judgment also impliedly takes care of vexatious cases filed against govt. employees leading to indefinite suspension in absence of an upper cap. This also will reduce bureaucratic discretionary powers under various departments.

It is settled law that suspension cannot be treated as a punishment. The sole object of suspending an employee is to disallow his employment temporarily till proven innocent for a fair probe. However, practically, years pass by without any settlement. “Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration,” the bench headed by Justice Vikramjit Sen said. However, if the charge sheet or memorandum of charges was served within this period of three months, the suspension could be extended.

“If it (suspension) is for an indeterminate period or if its renewal is not based on sound reasoning…, this would render it punitive in nature,” the court said.

It agreed with the petitioner’s averment that a suspension order can’t continue for an unreasonably long period. Protracted periods of suspension had become the norm and not the exception that they ought to be, the court said. It drew a parallel with criminal investigation wherein a person accused of heinous crime is released from jail after the expiry of 90 days if police fails to file the charge sheet.

The suspended persons suffers even before being charged and “his torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination”. “Much too often this has now become an accompaniment to retirement,” the court said, setting aside a direction of the central vigilance commission that required departmental proceedings to be kept in abeyance pending a criminal investigation. The government, however, will be free to transfer the officer concerned to any department in any of its offices to ensure the employee did not misuse contacts for obstructing the probe, the court said.

The order came on a petition filed by defence estate officer Ajay Kumar Choudhary, who was suspended in September 2011 for allegedly issuing wrong no-objection certificates for the use of a four-acre land parcel in Kashmir. After failing to get relief from the Delhi high court, Choudhary had moved the top court in 2013. Since a charge sheet had already been served on Choudhary, these directions would not apply to his case, the court said.
   REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.1918 OF 2015
                    (Arising out of SLP(C) No.30573 2012)


STATE OF KARNATAKA TR.                                   ... 

                                   Vs


VASAVADATTA CEMENT & ANOTHER                     ... 
Dated;FEBRUARY 16, 2015.

SUDHANSU JYOTI MUKHOPADHAYA,J

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