Documenti di Didattica
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PART I
GENERAL
1.
Short title, extent and commencement:— (1) These Rules
may be called the Central Civil Services (Classification, Control and
Appeal) Rules, 1965.
(2) They shall come into force on the 1 st December, 1965.
COMMENTARY
SYNOPSIS
1. These rules have been made by the President under Article 309.. ...................................... 3
2. Rules whether could only be issued under the signature of the
President ........................................................................................................................... ..3
3. Powers to make Rules ........................................................................................................ 3
4. Legislative competence ..................................................................................................... .3
5. Legislative character .......................................................................................................... 4
6. Article 309 of Constitution an enabling provision.............................................................. 4
7. Application of Art. 309 to the civilians working in the defence service ............................ 4
8. Not obligatory to make rules .............................................................................................. 4
9. Rules in a State................................................................................................................... 5
10. Rules for Union Territories under Article 309 ................................................................... 5
11. Rules may lay down conditions of service and recruitment ........................................... …5
(i) “Conditions of Service”, meaning of ............................................................ 5
(ii) Service conditions — change in .................................................................... 6
(iii) Conditions of service can vary from post to post and service to service ........ 6
(iv) Rules relating to conditions of service of officers and servants of a High
Court and seniority of officers of judicial service........................................... 7
(v) Rules should be reasonable, fair and not grossly unjust ................................. 7
(vi) Service conditions end on merger of State ..................................................... 7
2 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.1
1. These Rules have been made by the President under Article 309 —These
Rules have been made by the President under Article 309 of the Constitution of India
and they can, therefore, operate only within the scope of Article 309 and cannot travel
beyond its ambit. Jai Nath Wanchoo v. Union of India, AIR 1970 Bom 189: 1972 Bom
LR 51: ILR 1970 Bom 887.
See also Gaya Pandey v. State of Bihar, 1973(1) SLR 1; Sagli Ram Randhir
Singh v. Union of India, 1975(2) SLR 379: 1976 SLJ 77; B.S. Yadav v. State of
Haryana, 1981(1) SCR 1024: AIR 1981 SC 561: 1980 Supp SCC 524: 1981 Lab IC
104: 1981(1) LLN 235: 1981(1) LLJ 280: 1980(3) SLR 591: 1981 SCC (Lab) 343:
1981(1) SCWR 310: 1981(2) SCJ 137. and S. Surjit Singh v. Union of India, 1975(1)
SLR 424: 1975 SLJ 110; State of U.P. v. Chandra Mohan Nigam, 1977 SCJ 633;
1978(1) SLR 12 (SC); Union of India v. Ranjit Singh Grewal, 1980(3) SLR 256. See
also State of U.P. v. Shri Krishna Pandey, AIR 1996 SC 1656: 1996(9) SCC 395:
1996(2) SLR 518: 1996 SCC (L&S) 1250.
2. Rules Whether could only be issued under the Signature of the
President— The orders made by the President instead of being signed by the President
personally are authenticated by officers under Article 77(2) to show that they are
executed by the President himself. This is why the orders are expressed to be made by
the President. An order or instrument which is duly authenticated cannot be called in
question on the ground that it is not an order or instrument made or executed by the
President. D.S. Sharma v. Union of India, AIR 1970 Delhi 250: 1971(1) SLR 44.
3. Powers to make Rule — Article 309 of the Constitution of India
provides:— “Subject to the provisions of this Constitution, Acts of the appropriate
Legislature may regulate the recruitment, and conditions of service of persons
appointed, to public services and posts in connection with the affairs of the union or of
any State.
Provided that it shall be competent for the President or such person as he may
direct in the case of services and posts in connection with the affairs of the Union, and
for the Governor of a State or such person as he may direct in the case of services and
posts in connection with the affairs of the State, to make rules regulating the
recruitment, and the conditions of service of persons appointed, to such services and
posts until provision in that behalf is made by or order an Act of the appropriate
Legislature under this Article, and any rules so made shall have effect subject to the
provisions of any such Act.”
4. Legislative Competence — It is within the competence of the Legislature to
enact law governing the recruitment and the conditions of the service of its employees.
However, till the enactment of such a law and so far as no law may have been passed
4 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.1
the recruitment and conditions of service can be validly regulated by the rules framed
by the President or such person as he may direct in the case of services and posts in
connection with the affairs of the Union, and by the Governor of a State or such person
as he may direct in the case of services and posts in connection with the affairs of the
State concerned. In case of any conflict between the legislative enactment and the rules
framed under the proviso to Article 309, the legislative enactment will prevail. As long
as there is neither any legislative enactment nor any statutory rules framed by the
President or the Governor, the conditions of service and other matters relating to their
employees can be regulated by the issuance of administrative instructions in exercise of
the executive powers of the Government concerned. Harkishan Singh v. Punjab State,
1969 Cur LJ 833; B.S. Vadera v. Union of India, AIR 1969 SC 118: 1969 SLR 6:
1969(1) SCJ 73: 1969 Lab IC 100: 1970(1) LLJ 499: 1968(17) FJR 411: 1968(2) SCA
597: 1969(1) SCWR 182: 1968 SCD 1120; Gaya Prasad Pandey v. State of Bihar,
1973(1) SLR 1; N. Lakshmana Rao v. State of Karnataka, 1975 SLJ 560: AIR 1975 SC
1646: 1975(2) SLR 272: 1976(2) SCC 502: 1975 Lab IC 1121: 1975 SLJ 560: 1975(31)
FLR 44: 1975(2) LLJ 87: 1975(2) SCWR 236; Parmeshwar Dayal v. State of M.P.,
1977 SLJ 284: 1978(1) SLR 142.
See also State of Tamil Nadu v. K. Subanayagam, AIR 1998 SC 344: 1998(1)
SCC 318: 1997(9) JT SC 316: 1998(1) SLT 137: 1998(1) SLR 28 (SC).
5. Legislative character — Rules made under Article 309, proviso, of the
Constitution are legislative in character. Raj Kumar v. Union of India, AIR 1975 SC
1116: 1975(4) SCC 13: 1975(1) SLR 774: 1975 Lab IC 669: 1975 SLJ 615: 1975(30)
FLR 370: 1975 SCC (Lab) 198; Dr. Jagmohan Singh v. State of Punjab, 1980(3) SLR
400. A Memorandum under F.R.56 has also statutory force. Premdhar Baruha v. State
of Assam, AIR 1970 SC 1314: 1971(1) SCR 503: 1970(2) SCC 211: 1970 SLR 529:
1970 Lab IC 1067, (case relating to age of superannuation).
6. Article 309 of Constitution an Enabling Provision — The provisions of
Article 309 are merely enabling provisions and they do not impose any duty to legislate
or make rules nor, in the absence of such legislation or rules, do they fetter the power of
any State Government to exercise its executive power in the matter of its services. A.
Laxmandas v. State of M.P., AIR 1970 MP 189.
7. Application of Art. 309 to the civilians working in the defence service —
Held that employees serving in Defence can not claim any protection under Art. 311 of
the Constitution and CCS(CCA) Rules, 1965, which have been framed under Art. 309
and subject to Art. 311. Union of India v. Indrajit Datta, 1995 Supp (3) SCC 229:
1995(5) SLR 228.
8. Not Obligatory to make Rules — (i) It is not obligatory upon Government
to make rules regarding matters pertaining to service under the Government. Mallinath
Jain v. Municipal Corpn., Delhi, 1973 SLJ 239: 1973(1) SLR 413; Hardwari Lal v.
Divisional Engineer, Telegraphs, 1972 SLR 279.
(ii) It is not obligatory under the proviso to Article 309 to make rules of
recruitment etc. before a service can be constituted, or a post created or filled. Swaran
Lata v. Union of India, 1979 SLJ 170: 1979(1) SLR 710; Smt. Maria T.S. da P. Morais
R.1] GENERAL 5
Almeida v. Union of India, 1982(1) SLJ 136. Same applies to promotion. Sant Ram v.
State, AIR 1967 SC 1916: 1967(3) SCR 595.
9. Rules in a State — Under Article 309 of the Constitution the Governor of a
State or such person as he may direct can make rules regulating the recruitment and
conditions of service of persons appointed to services and posts in connection with the
affairs of the State until provision in that behalf is made by or under an Act of an
appropriate Legislature. B.S. Vadera v. Union of India, AIR 1969 SC 118: 1969 SLR 6:
1969(1) SCJ 73: 1969 Lab IC 100: 1970(1) LLJ 499: 1968(17) FJR 411: 1968(2) SCA
597: 1969(1) SCWR 182: 1968 SCD 1120; (1969)3SCR575 Gaya Prasad Pandey v.
State of Bihar, 1973(1) SLR 1.
10. Rules for Union Territories under Article 309 — The President acting
under the proviso to Article 309, can make rules regulating the recruitment and the
conditions of service, of the persons appointed to public services and posts in the Union
Territories. Sagli Ram Randhir Singh v. Union of India, 1975(2) SLR 379: 1976 SLJ 77.
11. Rules may lay down conditions of service and recruitment — Rules
under Article 309 are for the purpose of laying down the conditions of service and
recruitment. R.N. Nanjundappa v. T. Thimmiah, 1972(2) SCR 799: 1972(1) SCC 409:
AIR 1972 SC 1767: 1972 Lab IC 618: 1972(1) LLJ 565: 1973(2) SCJ 265: 1972 SLR
94; V.R. Shambulinga v. State of Karnataka, 1980(2) SLR 413.
(i) “Conditions of service” meaning of — All those conditions which regulate
the holding of a post by a person right from the time of his appointment till his
retirement and even beyond it in matters like pension etc. State of M.P. v. Shardul
Singh, 1970(3) SCR 302: 1970(1) SCWR 65: 1970 SLR 101: 1970(2) SCJ 442: 1970(1)
SCC 108.
See also State of Maharashtra v. Chandrakant Anant Kulkarni, AIR 1981 SC
1990: 1982(1) SCR 665: 1981(4) SCC 130:1981(2) SLJ 280: 1982(1) SLR 697
(SC).1981 Lab IC 1568: 1981(2) LLJ 433: 1981 SCC (Lab) 562.
The expression “condition of service” has a very wide import and covers many
topics, for example, period of probation, confirmation, leave, travelling allowance,
pay, promotion, gratuity etc. Parmeshwar Dayal Ram Pandey v. State of M.P., 1978(1)
SLR 142; Lily Kurian v. Sr. Lawina, 1978 Lab IC 1644: AIR 1979 SC 52: 1979(1) SLR
26. Seniority is a condition of service. B.S. Yadav v. State of Haryana, 1981(1) SCR
1024: AIR 1981 SC 561: 1980 Supp SCC 524: 1981 Lab IC 104: 1981(1) LLJ 280:
1980(3) SLR 591: 1981(1) SCWR 310: 1981(2) SCJ 137.
Condition of service would include the age of superannuation. State of Bihar v.
Yogendra Singh, AIR 1982 SC 882: 1982(1) SCC 664: 1982(1) SCJ 303: 1982(1) SLR
683 (SC): 1982(44) FLR 281: 1982(1) SLJ 580:1982(1) SCJ 303: 1982 BBCJ (SC) 114:
1982 BLJ 374: 1982 BLJR 447: 1982 Pat LJR (SC) 75.
Even as a right to receive pension, although accruing on retirement, is a
condition of service, so also the right to the payment of the cash equivalent of leave
salary for the period of unutilised leave accruing on the date of retirement must be
6 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.1
(iii) Conditions of Service can vary from Post to Post and Service to
Service — It is settled that conditions of service need be uniform in all services. They
can vary from post to post and from service to service. A.I.S.M”s Association v. G.M.
Central Railway, AIR 1960 SC 384; Kishori v. Union of India, AIR 1962 SC 1139; U.S.
Menon v. State of Rajasthan, AIR 1968 SC 81; State of U.P. v. S.M. Banerji, 1974(2)
SLR 499: 1974 ALJ 237. See also R.B. Jeevan Lall v. Municipal Board, 1997(1) SLR
292 Cal.
Where posts fell vacant prior to amendment of Rules the same have to be filled
up in accordance with the un-amended Rules. Guneeta Chadha v. Union of India,
2001(1) SLR 9 P&H (DB). But The vacancies which occurred prior to the amendment
of the Rules would be governed by the original Rules and not by the amended Rules.
R.1] GENERAL 7
State of Rajasthan v. R. Dayal, 1997(10) SCC 419: 1997(3) JT 198: 1997(2) SLR 68:
1997(1) UJ 479: 1998(1) SLJ 119.
In one case amendment in rules was made during the process of appointment
but the letter of appointment also making appointment on the scale of pay as per the
amended rules. It was held that the incumbent cannot claim to be governed by the
earlier rules which were in force at the time of his appearance in competitive
examination. H.S. Grewal v. Union of India, 1997(11) SCC 758: 1997(7) JT 594:
1997(5) SLR 278: 1998(1) SLJ 259.
The Government service originates from a contract but on appointment the
Government servant acquired a status subject to rights and obligations governed by
statute or statutory rules. Therefore the amendment in the rules affect not only the
persons who join service after amendment of Rules but all the persons in service at the
time of amendment. Government of Andhra Pradesh v. Syed Yousuddin Ahmed, AIR
1997 SC 3439:1997(7) SCC 24: 1997(7) JT 395: 1997(5) SLR 219: 1998(1) SLJ 91:
1997 Lab IC 3361.
(iv) Rules Relating to Conditions of Service of Officers and Servants of a
High Court and Seniority of Officers of Judicial Service — The approval of the
Governor is confined only to such rules as relate to salaries, allowances, leave or
pension. All other rules in respect of conditions of service do not require his approval.
M. Gurumoorthy v. Accountant General, Assam, 1971(2) SLR 434: AIR 1971 SC 1850:
1971 (2) SC 137: 1971(2) LLJ 109: 1971 Assam LR 42 (SC); also see T. Gopala
Krishna Murthy v. State of A.P., 1973 SLJ 635.
Power to frame rules regarding seniority of officers in the judicial service of
the State is vested in Governor and not in the High Court. B.S. Yadav v. State of
Haryana, 1981(1) SCR 1024: AIR 1981 SC 561: 1980 Supp SCC 524: 1981 Lab IC
104: 1981(1) LLJ 280: 1980(3) SLR 591:1981(1) SCWR 310: 1981(2) SCJ 137.
(v) Rules should be Reasonable, Fair and not Grossly Unjust — There is no
denying the fact that the rules regulating the conditions of service are within the
executive power of the State or its legislative power under the proviso to Article 309 of
the Constitution but even so, such rules have to be reasonable, fair and not grossly
unjust, if they are to survive the test of Articles 14 and 16 of the Constitution. State of
U.P. v. Ram Gopal Shukla, AIR 1981 SC 1041: 1981(3) SCC 1: 1981(2) SLR 3:
1981(1) SLJ 663 (SC): 1981(2) LLN 16:1981(1) LLJ 494: 1981 All LJ 450.
(vi) Service Conditions end on merger of State — When one State is
absorbed in another whether by accession, conquest, merger or integration, all contracts
of service between the prior Government and its servants automatically terminate,
thereafter those, who elect to serve in the new State and are taken on by it, serve on
such terms and conditions as the new State may choose and that this is nothing more
than an application of the principle that underlines the law of master and servant, when
there is a change of masters. Rajvi Amar Singh v. State of Rajasthan, AIR 1958 SC 228:
1958 SCR 1013: 1958 SCJ 420. See also B.S. Vadera v. Union of India, AIR 1969 SC
118: 1969(1) SCJ 73: 1969 SLR 6.
8 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.1
12. Rules Subject to Judicial Scrutiny — (a) Rules under Article 309 proviso
are subject to Judicial scrutiny and may be struck down if inconsistent with Articles 310
and 311. State of U.P. v. Babu Ram Upadhaya, AIR 1961 SC 751; Collector of Customs
v. Md. Habibul Haque, 1973(1) SLR 321; Vishwanath Verma v. State of M.P., 1977(1)
SLR 1053.
Accordingly a rule regulating the scope and content of the doctrine of
reasonable opportunity (Article 311) can be judicially scrutinised. State of U.P. v. Babu
Ram Upadhaya, AIR 1961 SC 751.
Rules can also be scrutinised with reference to fundamental rights, such as right
to equality under Article 14. Dasarath Rama Rao v. State of A.P., AIR 1963 SC 564;
State of U.P. v. Ramgopal Shukla, AIR 1981 SC 1041: 1981(3) SCC 1: 1981(2) SLR 3:
1981(1) SLJ 663 (SC): 1981(2) LLN 16: 1981(1) LLJ 494: 1981 All LJ 450: 1981
SCC(Lab) 464: 1981(2) SCWR 94.
(b) Right to equality in employment. Amarjit Singh Ahluwalia v. State of
Punjab, AIR 1975 SC 984: 1975(1) SLR 171: 1975 SLJ 220: 1975 Lab IC 613.
13. Entry into Service — A rule governing entry into service (to bar entry by
promotion) cannot form part of “conditions of service”. Anoop Singh Gill v. State of
Punjab, 1983(1) SLJ 532: 1983(1) SLR 602(P&H).
14. Rules not to Impinge upon Pleasure of President or Governor — Any
provision in the Rules which impinges upon the pleasure of the President or the
Governor under Article 310 except to the extent the same is curtailed by Article 311
would not be operative. Jai Nath Wanchoo v. Union of India, AIR 1970 Bom 180; S.
Surjit Singh v. Union of India, 1975(1) SLR 424: 1975 SLJ 110; State of U.P. v.
Chandra Mohan Nigam, 1977 SLJ 633: 1978(1) SLR 12 (SC): 1978(1) SCR521; Union
of India v. Ranjit Singh Grewal, 1980(3) SLR 256. See Kunjappan v. Cochin Port
Trust, 1997(1) SLR 242 Ker (DB).
Under the proviso to Article 309 a law can be made or a Rule can be framed, as
the case may be, prescribing the procedure by which and the authority by whom, the
said pleasure can be exercised; and obviously a law or Rule so made cannot be treated
as impinging upon, or curtailing the pleasure of the President or the Governor under
Article 310. V.Y. Thomas v. Commandant, A.D.C. Centre, 1982 Lab IC 632: 1982 (2)
SLR 39 (AP).
15. Rules Issued with Approval — Rules were issued with the approval of
Governor. It cannot be said that Governor had delegated his power. Bhuban Chandra
Dutta v. Accountant General, AIR 1970 Assam 26.
16. Rules under Police Act — Under Section 12 of Police Act, 1861 power to
make rules conferred on the Inspector-General of Police is subject to approval of State
Government, Chief Commissioner, Manipur who was also the Inspector General of
Police, Manipur framed rules, but approval of the State Government was not obtained.
It was held that from the mere fact that the I.G. Police was simultaneously holding the
office of the Chief Commissioner, approval could not be presumed, the rules were void.
Superintendent of Police, Manipur v. R.K.T. Singh, 1983(3) SLR 550(SC).
R.1] GENERAL 9
18. Rules not to Curtail Rights Guaranteed by Article 311 — In Moti Ram
Deka v. General Manager, N.E.F. Railway, AIR 1964 SC 600: 1964(5) SCR 638, which
is the leading case on the meaning of “dismissal” and “removal”, it was held that rules
cannot trespass upon or curtail the rights guaranteed by Article 311 of the Constitution.
Thus an authority subordinate to the appointing authority cannot be authorised to
dismiss a civil servant. Balak Das v. Astt. Security Officer, AIR 1960 MP 183.
19. Rules with Retrospective Operation — (i) It is a settled law that unless a
statute conferring the power to make rules provides for the making of rules with
retrospective operation, the rules made pursuant to that power can have prospective
operation only. An exception, however, is the proviso to Article 309. Rules framed
under the proviso to Article 309 of Constitution could have retrospective operation. B.S.
Vadera v. Union of India, 1969(1) SCJ 73: AIR 1969 SC 118: 1969(3) SCR 575: 1969
SLR 6; Zabar Singh v. State of Haryana, AIR 1972 SC 1972: 1973(2) SCJ 40: 1972
SLR 486; Raj Kumar v. Union of India, AIR 1975 SC 1116: 1975(4) SCC 13: 1975(1)
SLR 774: 1975 Lab IC 669: 1975 SLJ 615: 1975(30) FLR 370: 1975 SCC (Lab) 198;
Dei Chand Phaugat v. State of Haryana, 1980(2) SLR 391 (FB); Accountant General v.
S. Doraiswamy, 1980(3) SLR 538: AIR 1981 SC 783. Therefore rules framed under
Article 309 can be given retrospective effect. G. Nagendra v. State of Karnataka,
1998(9) SCC 439: 1998(8) JT 134(2): 1999(81) FLR 24. By amending the provision of
law retrospective operation could be given to the Rules. However, retrospective
operation of service rules could not be given by mere Executive instructions. Where the
Rules framed by the Society are not statutory rules and they can be amended by a
resolution of the competent body and any legislation or framing of rules under Article
309 of the Constitution is not required. I.C.A.R. v. Satish Kumar, 1998(4) SCC 219:
AIR 1998 SC 1782: 1998(3) JT 9: 1998(2) SLR 808: 1998(3) SLJ 155: 1998
Lab IC 1596.
(ii) Rules under Article 309 of Constitution which have to come into force
retrospectively are in the nature of things likely to take away vested rights. Dr.
Jagmohan Singh v. State of Punjab, 1980(3) SLR 400 Punjab.
(iv) Even though State has power to frame rules under Article 309 with
retrospective effect, such rules have to be reasonable and fair and not unjust or arbitrary
if they are to survive under the test of Articles 14 and 16 of the Constitution. M.D.
Deshmukh v. Union of India, 1982(2) SLJ 623.
20. Rules: (i) Interpretation of — The Rules of Statutory Interpretation or the
Rules of a subordinate legislation, including Rules made under Article 309 of the
Constitution, dos not empower any judicial or quasi-judicial body to apply the law to a
situation or object which was not contemplated by the legislature while making a law,
or by the Government while making the rule. B.N. Sinha v. Union of India, AIR 1998
SC 2600: 1998(3) SCC 157: 1998(4) JT 281: 1998(79) FLR 747: 1998 Lab IC 3100. It
is however a settled rule of law that the question of intention of the Legislature or the
rule making authorities is wholly immaterial in construing a statutory provision. Where
the language of the rule is plain and there is no ambiguity, in such a situation there can
never be any question of reading into the rule something which does not exist there.
Brij Mohan Singh v. State of Punjab, 1968 Cur LJ 801. No words should be considered
redundant or surplus in interpreting the provisions of a statute or a rule. Dinesh
Chandra Sangma v. State of Assam, AIR 1978 SC 17: 1978(1) SCR 607: 1977(4) SCC
441: 1978(2) SCJ 88: 1977 SLR 622: 1977 Lab IC 1852: 1978(1) SLR 25.
(ii) Where two Constructions Possible — One of the fundamental rules of
interpretation is that if the words of a statute are themselves precise and unambiguous,
no more is necessary than to expound those words in their natural and ordinary sense,
the words themselves in such case best declaring the intention of the legislature. Govind
Lal Chaggan Lal Patel v. Agriculture Produce Market Committee, AIR 1976 SC 263:
1975(2) SCC 482: 1976(1) SCR 451.
It is well recognised canon of construction that the construction which makes
the rule otiose or unworkable should be avoided where two constructions are possible
and the Court should lean in favour of the construction which would make the rule
workable and further the purpose for which the rule is intended. Dr. N.C. Singhal v.
Union of India, AIR 1980 SC 1255: 1980(3) SCR 44: 1980(3) SCC 29: 1980(2) SLR
118: 1980 SLJ 408: 1980 Lab IC 710; State of Kerala v. M.K. Krishnan Nair, AIR 1978
SC 747: 1978(2) SCR 864: 1978(1) SCC 552: 1978(2) SCJ 531: 1978(1) SLR 499 (SC).
(iii) Harmonious construction — When the rules legislative in character, they
must harmoniously be interpreted as a connected whole giving life and force to each
word, phrase and rule and no part thereof should be rendered nugatory or a surplusage.
Resort to iron out the creases could be had only when the construction of the relevant
rule, phrase or word would lead to unintended absurd results. Keshav Chandra Joshi v.
Union of India, AIR 1991 SC 284: 1992 Supp (1) SCC 272: 1990 Supp (2) SCR 573:
1990(2) Scale 951.
(iv) Notes to the Rules — The notes to the rules make explicit what is implicit
in the rules. Notes which are appended to the rules are of aid not only in applying the
rules but also in interpreting the true import of the rules. The real purpose of the notes
is that when rules are silent the notes fill up gaps. Tara Singh v. State of Rajasthan,
AIR 1975 SC 1487: 1975(3) SCR 1002: 1975(4) SCC 86: 1975 Lab IC 1046: 1975(1)
SLR 777: 1976 SLJ 619. When a note is in conflict with the rule, that has to be ignored.
R.1] GENERAL 11
Dr. R.V.N. Sinha v. State of Bihar, 1976(2) SLR 363. Where the provision of a rule is
clear, note cannot be utilised to whittle down what has been provided in the rule.
Narayan Chandra Halder v. Union of India, 1981(1) SLR 678.
(v) Proviso to a Rule — (i) It is well established rule of interpretation of
statute that a proviso cannot be so constructed as to eat away the rule to which it is
proviso. R.K. Gupta v. Delhi Administration, 1979 SLJ 121: 1979(1) SLR 785. The
Court should not so construe the proviso as to attribute an intention to the legislature to
give with one hand and take away with another. To put it in other words, a sincere
attempt should be made to reconcile the enacting clause and the proviso and to avoid
repugnancy between the two. Tahsildar Singh v. State of U.P., AIR 1959 SC 1012:
1959 CrLJ 1231: 1959 Supp (2) SCR 875: 1959 MLJ (Cri) 759: 1959 (2) Andh WR
(SC) 201.
A proviso cannot expand or limit the principle provision and it must be read
and considered in relation to the principal matter to which it is proviso and that it is not
a separate or independent enactment. Dwarka Prasad v. Dwarka Dass, AIR 1975 SC
1758: 1976(1) SCR 277: 1976(1) SCC 128: 1975 RCR 712: 1975 RCJ 593.
(vi) Clarification of the Rules — Normally, the Rules framed under the
proviso to Article 309, cannot be amended except in accordance with procedure laid
down therein. But in the instant case, the question was whether a clarification issued by
the Govt. could be construed as an amendment to the rules. Even under the rules, it is
specifically stated that a Degree or Diploma in Electrical Engineering from a
recognised university or its equivalent would be the requisite qualification for
promotion to the cadre of Executive Engineer. In the Rules, some of the recognised
universities are also mentioned and admittedly, these institutions are not awarding any
Diploma. The rules say that equivalent qualification also would be considered. There is
nothing wrong in the appointing authority issuing a clarification as to what would be
the equivalent qualification for the purpose of appointment. When the universities do
not offer the Diplomas prescribed under the Rules, the rule itself becomes meaningless
and nugatory. Under the Rules, the candidates are asked to produce a certificate which
is neither in existence nor awarded. It was at this juncture that the Govt. issued a
clarification that the Diploma awarded by recognised institutions, which are affiliated
to the State Board of Technical Education in Haryana, would be considered as
equivalent. Therefore the clarification was held to be valid. O.P. Lather v. Satish
Kumar Kakkar, AIR 2001 SC 821: 2001(3) SCC 110: 2001(2) JT 280.
(vii) Mandatory and directory — It is the substance that counts and must take
precedence over mere form. Some rules are vital and go to the root of the matter they
cannot be broken; others are only directory and a breach of them can be over-looked
provided there is substantial compliance with the rules read as whole an provided no
prejudice ensues; and when the legislature does not itself state which judges must
determine the matter and, exercising a nice discrimination, sort out one class from the
other along broad based, commonsense lines. Pratap Singh v. Shri Krishna Gupta, AIR
1956 SC 140: 1956 SCJ 143: 1955(2) SCR 1029.
The use of the word “shall” in a statute, though generally taken in a mandatory
sense, does not necessarily mean that in every case it shall have that effect, that is to
12 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.1
say, that unless the words of the statute are punctiliously followed, the proceeding or
the outcome of the proceeding, would be invalid. On the other hand, it is not always
correct to say that where the word “may” has been used, the statute is only permissive
or directory in the sense that non-compliance with those provisions will not render the
proceeding invalid.
The question as to whether a statute is mandatory or directory depends upon the
intent of the Legislature and not upon the language in which the intent is clothed. The
meaning and intention of the Legislature must govern, and these are to be ascertained,
not only from the phraseology of the provision, but also by considering its nature, its
design, and the consequences which would follow from construing it the one way or the
other. State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912: 1957 All LJ 921:
1958 Mad LJ: 1958 SCJ 150: 1958 SCR 533.
There is no doubt that the word “may” generally does not mean “must” or
“shall”. But it is well-settled that the word “may” is capable of meaning “must” or
“shall” in the light of the context. It is also clear that where a discretion is conferred
upon a public authority coupled with an obligation, the word “may” which denotes
discretion should be construed to mean a command. Sometimes, the Legislature uses the
word “may” out of deference to the high status of the authority on whom the power and
the obligation are intended to be conferred and imposed. State of Uttar Pradesh v.
Jogendra Singh, AIR 1963 SC 1618: 1963 All LJ 617: 1963(2) Lab LJ 444: 1964(2)
SCR 197. Therefore the word “may” is capable of meaning “must” or “shall” in the
light of the context and that where a discretion is conferred upon a public authority
coupled with an obligation, the word “may” which denotes discretion should be
construed to mean a command. Shri Rangaswami, The Textile Commissioner and others
v. The Sagar Textile Mills (P) Ltd., AIR 1977 SC 1516: 1977(2) SCC 578: 1977(2) SCR
825.
No general rule can be laid down for deciding whether any particular provision
in a statute is mandatory, meaning thereby that non-observance thereof involves the
consequence of invalidity or only director, i.e., a direction the non-observance of which
does not entail the consequence of invalidity, whatever other consequences may occur.
But in each case the Court has to decide the legislative intent. Banwarilal Agarwalla v.
State of Bihar, AIR 1961 SC 849: 1961 BLJR 589: 1962(1) SCR 33.
(viii) Rule of procedure are not by themselves an end but the means to achieve
the ends of justice. rules of procedure are tools forged to achieve justice and are not
hurdles to obstruct the pathway to justice. Construction of a rule of procedure which
promotes justice and prevents its miscarriage by enabling the Court to do justice in
myriad situations, all of which cannot be envisaged, acting within the limits of the
permissible construction, must be preferred to that which is rigid and negatives the
cause of justice. Thes reason is obvious. Procedure is meant to subserve and not rule the
cause of justice. When the outcome and fairness of the procedure adopted is not
doubted and the essentials of the prescribed procedure have been followed there is no
reason to discard the result simply because certain details which have not prejudicially
affected the result have been inadvertently omitted in a particular case. In our view, this
appears to be the pragmatic approach which needs to be adopted while construing a
R.1] GENERAL 13
purely procedural provision. Otherwise, rules of procedure will become the mistress
instead of remaining the handmaid of justice, contrary to the role attributed to it in our
legal system. Owner and Parties interested in M.V. “Vali Pero” v. Fernandeo Lopez,
AIR 1989 SC 2206: 1989(4) SCC 671: 1989 Supp. (1) SCR 187: 1989(4) JT 100.
21. Rules, Unilateral: Alteration of — Rules can be unilaterally altered by
Government without consent of the employee. Roshan Lal Tandon v. Union of India,
AIR 1967 SC 1889: 1968(1) SCR 185: 1967 SLR (SC) 832: 1968(1) LLJ 576.
22. Rules cannot be Altered or Amended by Administrative or Executive
Instructions — The Government is not competent or alter the rules framed under
Article 309 by means of administrative instructions. State of Haryana v. Shamsher Jang
Bahadur, 1972 SLR 441: AIR 1972 SC 1546: 1973(1) SCR 249: 1972(2) SCC 188:
1973(2) SCJ 582: 1972 Lab IC 824: 1972(2) LLJ 186; State of Punjab v. Madan Singh,
AIR 1972 SC 1429: 1974(3) SCC 90: 1973(1) SCJ 82: 1972 SLR 446; D.K. Gupta v.
Municipal Corporation of Delhi, 1979(3) SLR 416: 1978 SLJ 525; Dr. (Miss) Subhash
Kaushal v. State of Punjab, 1982(1) SLJ 684. Retrospective operation of service rules
could not be given by mere Executive instructions. Where the Rules framed by the
Society are not statutory rules and they can be amended by a resolution of the
competent body and any legislation or framing of rules under Article 309 of the
Constitution is not required. I.C.A.R. v. Satish Kumar, 1998(4) SCC 219: AIR 1998 SC
1782: 1998(3) JT 9: 1998(2) SLR 808: 1998(3) SLJ 155: 1998 Lab IC 1596.
23. Rules cannot be Modified by Executive Orders — A rule framed under
the proviso to Article 309 of the Constitution cannot be modified by an executive
order. State of Maharashtra v. Chandra Kant Anant Kulkarni, 1981(2) SLJ 280:
1982(1) SLR 697 (SC). Executive instructions cannot prescribe departmental test. State
of Punjab v. Madan Singh, 1982(1) SCR 665: 1981(4) SCC 130: AIR 1981 SC 1990:
1981 Lab IC 1568: 1982(1) SLR 697: 1981(2) SLJ 280: 1981(2) LLJ 433: 1981(3) SLR
326: 1981 SCC (Lab) 562. Statutory rules cannot be overridden by executive orders or
executive practice. Merely because the Government had taken a decision to amend the
rules does not mean that the rule stood obliterated. Till the rule is amended, the rule
applies. K. Kuppusamy v. State of Tamil Nadu, 1998(8) SCC 469.
When the Rules provide different treatment to class I and class II service
respectively then without the amendment of the rules, the Class II of the service can not
be treated as Class I only by way of notification. Following such a course in effect
amounts to amending the rules by a Government Order and ignoring the mandate of
Article 309 of the Constitution. Rajinder Singh v. State of Punjab, AIR 2001 SC 1769:
2001(4) JT 538: 2001(5) SCC 482.
The provisions of statutory Rules cannot be taken away by a suggestion of the
executive until and unless the Rules are appropriately amended. N.K. Pankajaksha Nair
v. P.V. Jayaraj, 2001(3) SLR 580 (SC): 2001(4) JT 406: 2001(2) KLT 141.
The proviso to rule 2 of Fundamental Rules prohibits modification or
replacement of provisions of Fundamental Rules itself in exercise of power under
Article 309 of the Constitution to the disadvantage of the person already in service. It
has no reference to any other Rule which a Governor could frame under proviso to
14 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.1
Article 309 of the Constitution. In that view of the matter the proviso to Rule 2 of the
Fundamental Rules cannot affect the power of the Governor to amend the Pension Rules
in exercise of his power under the proviso to Article 309 of the Constitution.
Government of Andhra Pradesh v. Syed Yousuddin Ahmed, AIR 1997 SC 3439: 1997(7)
SCC 24: 1997(7) JT 395: 1997(5) SLR 219: 1998(1) SLJ 91: 1997 Lab IC 3361.
By an executive order the statutory rules cannot be whittled down nor can any
retrospective effect be given to such executive orders so as to destroy any right which
became crystallised. Uday Pratap Singh v. State of Bihar, 1994 Supp (3) SCC 451:
1994(6) JT 344: 1995(1) SCJ 304: 1994(5) SLR 608: 1995(1) SLJ 123: 1994(69) FLR
1148. Even rules framed under Article 309 of the Constitution cannot affect or impair
vested rights, unless it is specifically so provided in the concerned statutory rules. T.R.
Kapur & Ors. v. State of Haryana, AIR 1987 SC 415. It is obvious that an executive
direction stands even on a much weaker footing. Uday Pratap Singh v. State of Bihar,
1994 Supp (3) SCC 451: 1994(6) JT 344: 1995(1) SCJ 304: 1994(5) SLR 608: 1995(1)
SLJ 123: 1994(69) FLR 1148.
24. Relaxation of Rules — There can be no relaxation of the basic or
fundamental rules of recruitment. Suraj Parkash Gupta v. State of Jammu & Kashmir,
AIR 2000 SC 2386: 2000(7) SCC 561: 2000(5) JT 413: 2000 Lab IC 2588: 2000(4)
SLR 486.
25. Validity of Rule cannot be Affected by Reason of Inconsistency with
Prior Executive Order — The rule being statutory in origin, its validity cannot be
affected by reason of any inconsistency with the provisions of a prior executive order
issued by the Central Government. Wg. Commander J. Kumar v. Union of India, AIR
1982 SC 1064: 1982(2) SCC 116: 1982(3) SCR 453.: 1982(1) SLJ 452: 1982(1) SLR
715: 1982 Lab IC 1586.
25 (i) Gaps in Rules, Filling by Administrative or Executive Instructions —
(i) Government cannot amend or supersede statutory rules by administrative
instructions, but if the rules are silent on any particular point Government can fill up
the gaps and supplement the rules and issue instructions not inconsistent with the rules
already framed. Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910: 1968(1)
SCJ 672: 1968(1) SCR 111: 1968(2) LLJ 830; Lalit Mohan Deb v. Union of India,
1973(1) SCJ 92: AIR 1972 SC 995: 1972 SLR 411: 1972 Lab IC 543; State of Haryana
v. Shamsher Jang Bahadur, 1973(2) SCJ 582: AIR 1972 SC 1546: 1972(2) SCC 188:
1973(1) SCR 249; District Registrar, Palghat v. M.B. Koyyakutty, AIR 1979 SC 1060:
1979(3) SCR 242: 1979(2) SCC 150: 1979 SLJ 278: 1979(1) SLR 628: 1979 Lab IC
803; Union of India v. N.R. Sundram, 1982(2) SLR 393. The executive instructions may
supplement but not supplant the rules. Bishundeo Mahto v. State of Bihar, 1982 Lab IC
1446.
(ii) Breach of Executive or Administrative Instructions — A circular
containing instructions cannot be ignored where it filled up the gaps and supplemented
the statutory rules. Gurnam Singh v. State of Rajasthan, 1973(1) SCJ 267: 1971(2) SCC
452; Satya Dev Dogra v. Union of India, 1973 SLJ 32 (Delhi); D.P. Pathak v. State of
Punjab, 1980 SLJ 559: 1980(1) SLR 346.
R.1] GENERAL 15
the Official Gazette but the publication in the Official Gazette is not the sine quo non of
the validity of action taken under them. Balbir Singh v. State of Punjab, 1975(1) SLR
241.
(vi) Administrative or Executive Instructions with Retrospective Effect —
Government is not competent to issue any executive instructions with retrospective
effect. This is squarely within the legislative sphere. Dr. (Miss) Subhash Kaushal v.
State of Punjab, 1982(1) SLJ 684. By an executive order the statutory rules cannot be
whittled down nor can any retrospective effect be given to such executive orders so as
to destroy any right which became crystallised. Uday Pratap Singh v. State of Bihar,
1994 Supp (3) SCC 451: 1994(6) JT 344: 1995(1) SCJ 304: 1994(5) SLR 608: 1995(1)
SLJ 123: 1994(69) FLR 1148.
A condition of service determined by an executive order cannot be
subsequently altered retrospectively to the prejudice of a civil servant. Daljit Singh
Narula v. State of Haryana, 1979(1) SLR 420. Because the amended rules cannot take
away the vested right to be adjusted in a department upon appointment. Union of India
v. Parmanand, 1996(10) SCC 434: 1996(9) JT 544: 1996(5) SLR 313: 1996(74) FLR
2658.
Retrospective amendment of rules whereby the amount of pension payable
reduced from the amount payable at the time of retirement thus taking away the vested
right accorded to the employees. It was held that the amendment is invalid, arbitrary
and unconstitutional being violative of Articles 14 and 16 as also the article 19(1)(f) &
31(1) of the Constitution which were in force at that time. Chairman, Railway Board v.
C.R. Rangadhamaiah, AIR 1997 SC 3828: 1997(6) SCC 623: 1997(2) SCJ 523: 1997(4)
LLN 7: 1998(78) FLR 222: 1997(4) SLR 759: 1998(3) SLJ 76: 1998 Lab IC 100; See
also Bhakta Ramegowda v. State of Karnataka, AIR 1997 SC 1038: 1997(2) SCC 661:
1997(2) JT 325: 1997(1) LLJ 886: 1997(2) SLR 381: 1997(2) LLN 3: 1997(76) FLR
191: 1997 Lab IC 1290: 1998(1) SLJ 208.
27. Administrative Instructions and Rules and Regulations, Distinction
Between — Broadly stated, the distinction between rules and regulations on the one
hand and administrative instructions on the other is, that rules and regulations can be
made only after reciting the source of power whereas administrative instructions are not
issued after reciting the source of power. Secondly, the executive power of a State is
not authorised to frame rules under Article 162. The rules under Article 309 on the
other hand constitute not only the constitutional rights of relationship between the State
and the Government servants but also establish that there must be specific power to
frame rules and regulations. Sukhdeo Singh v. Bhagatram Sardar Singh, AIR 1975 SC
1331: 1975(3) SCR 619: 1975(1) SCC 421: 1975(45) Comp Cas 285: 1975 Lab IC 881:
1975(1) SLR 605; see also Som Nath v. Union of India, 1973(1) SCR 737: 1973 SLJ
619. The statutory rules cannot be described as, or equated with, administrative
directions. State of Uttar Pradesh v. Babu Ram Upadhya, 1961 AIR SC 751: 1961(1)
CrLJ 773: 1961(2) SCR 679; But Government has the power to issue Administration
Order governing the service conditions of its employees in the absence of any statutory
provisions governing the field. M.M. Dolichan v. State of Kerala, AIR 2001 SC 216:
2001(1) SCC 151: 2001 Lab IC 66: 2001 SCC (L&S) 174: 2000(7) SLR 217.
R.1] GENERAL 17
A letter of the Government of India has no statutory force and cannot be the
basis for determining seniority. Vijaydevaraj Urs. v. G.V. Rao, 1983(1) SLR 292 (Kar)
(paras 28 to 30).
34. Repeal of rules — The effect of a rule being substituted by a new rule
clearly is that the old rule, which stands substituted, can under no circumstances have
any application at least from the date when it ceased to exist. Union of India v. C. Rama
Swamy, AIR 1997 SC 2055: 1997(4) SCC 647: 1997(4) JT 605: 1997(2) SLR 584:
1997(2) LLN 619. Government orders which are legislative in character can be repealed
by the subsequent rules and Tribunal can not direct to enforce the repealed orders. State
of Andhra Pradesh v. Civil Suppliers Services Association, 2000(9) SCC 299: 2000(9)
JT 602: 2000(4) LLN 27.
35. Strict compliance of Rules is required — The recruitment rules made
under Article 309 of the constitution have to be followed strictly and not in breach. If a
disregard of the rules and the by-passing of the Public Service Commission is
permitted, it will open a back door for illegal recruitment without limit. Anuradha Bodi
v. Municipal Corporation of Delhi, 1998(5) SCC 293: AIR 1998 SC 2093: 1998(3) JT
757: 1998(4) SLR 359: 1999(1) SLJ 1: 1999(1) LLJ 560: 1998 Lab IC 1911.
R.2
COMMENTARY
SYNOPSIS
Clause (d)
See also Allied Service Matters - Public Service Commission
Clause (g)
Clause (h)
Clause (m)
Clause (a).
1. Appointing Authority: Powers of — (i) It is a fundamental principle of
interpretation that unless a contrary intention appears from the contract, a power to
appoint should include a power to terminate the appointment, including termination of
the person appointed by his compulsory retirement in accordance with the terms and
conditions of his service. The fundamental principle underlies Section 16 of the General
Clauses Act. S.R. Tiwari v. District Board, Agra, 1964(3) SCR 55: AIR 1964 SC 1680:
1964(2) SCJ 300: 1966(13) FLR 104; State of Tamil Nadu v. M.N. Sundarajan, 1980 (3)
SLR 451: 1981(1) SLJ 36; As regards competant authority to issue chargesheet, see
Government of Tamil Nadu v. S. Vel Raj, AIR 1997 SC 1900: 1997(2) SCC 708:
1997(1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3) LLJ 1
and Inspector General of Police v. Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC
145: 1996(6) JT 450: 1996 SCC (L&S) 433: 1996(32) ATC 663: 1996(2) SLR 470:
1996(1) UJ 424: 1996(74) FLR 2510: 1996(2) LLN 515: 1997(2) LLJ 191.
R.2] GENERAL 23
See also Karnataka State Road Transport v. K.C. Mudalgirappa, 1988(1) SLR
106 Kar.
(ii) The power of appointment carries with it the power to dismiss, discharge,
remove an employee or to terminate his services in accordance with the conditions of
employment. Post Graduate Institute of Medical Education v. Sham Lal, 1974 SLJ 365:
1974 (2) SLR 814; Union of India v. Gurbaksh Singh, AIR 1975 SC 641: 1975(3) SCR
444: 1975(3) SCC 638: 1975 SLJ 554: 1975(1) SCJ 351.
(iii) Power of delegatee is circumscribed by the instructions of delegation and
can be validly exercised only within the ambit of the delegation. Delegation made by
the General Manager Railways extends only to the power to appoint, and not the power
to take disciplinary action. Gafoor Mia Kansal v. Director, DMRL, 1988(4) SLR 445
(CAT Hyderabad).
(iv) A delegatee of the appointing authority cannot initiate disciplinary
proceedings, only by virtue of the fact that he has been delegated with the power to
appoint unless he is also designated as a disciplinary authority. Such authority cannot
impose major punishment if it is lower in rank than the authority which appointed the
particular Railway servant or Government servant. Gafoor Mia Kansal v. Director,
DMRL, 1988(4) SLR 445 (CAT Hyderabad).
(v) The power of “appointment” conferred by Article 229(1) includes the power
to suspend, dismiss, remove or compulsory retirement from service. Chief Justice of
A.P. v. I.V.A. Dixitulu, 1979(1) SLR 1: 1979 SLJ 332: AIR 1979 SC 193: 1979(2) SCC
34: 1978 Lab IC 1672.
(vi) Where the authorities which had appointed a civil servant to service or to
the grade or to a particular post are different for the purpose of the rule and therefore,
for Article 311 of the Constitution, the appointing authority would be the highest of the
three authorities. K.K. Mittal v. Union of India, 1974(2) SLR 602; Dharma Dev Mehta
v. Union of India, AIR 1980 SC 557: 1980(2) SCR 554: 1980(2) SCC 205: 1980 Lab IC
383: 1980(1) SLR 414.
See also State Bank of India, Hyderabad v. Ch. Hanumantha Rao, 1988(4) SLR
703 (AP)
(vii) The competent authority to suspend an officer is appointing authority or
any subordinate authority on whom the power of disciplinary authority has been
conferred by the Governor by general or special order. Held that suspension order by
such delegate is valid. A.K. Jadhav v. State of Madhya Pradesh, 1997(9) SCC 240: AIR
1997 SC 2394: 1997(4) JT 583: 1997(2) SLR 804: 1997(76) FLR 266: 1997(2) SCJ
125: 1997 Lab IC 2339.
2. Appointing authority to act with application of mind — As per the
relevant rules, competent authority to impose penalty of dismissal was Chairman-cum-
Managing Director but he had mechanically approved the proposal of the Director
(Commercial) who had also not examined the matter before making his proposal. Held
that whenever an Authority decides a matter, which entails civil consequences to the
person concerned, it must pass speaking order giving reasons. Held further that the
24 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.2
Undertaking v. B.B.L. Hajelay, AIR 1972 SC 2452: 1973(2) SCR 114: 1972(2) SCC
744: 1972 SLR 787: 1973 SCJ 19. Where however the President or the Governor is the
appointing authority, the decision of Minister or Officer under the rules of business is
the decision of the President or the Governor. Where functions entrusted to a Minister
are performed by an official employed in the minister”s department there is in law no
delegation because constitutionally the act or decision of the official is that of the
Minister. The official is merely the machinery for the discharge of the functions
entrusted to a Minister. Shamsher Singh v. State of Punjab, 1975(1) SCR 814: AIR
1974 SC 2192: 1974(2) SCC 831: 1974(2) SLR 701: 1974 Lab IC 1380.
6. Appointing Authority of District Judges and Persons of Judicial Service
of the State — The Governor is the appointing authority. Appointment or dismissal or
removal of persons belonging to the judicial service of the State is not personal function
of the Governor but is an executive functions exercised in accordance with the rules in
that behalf under the Constitution. The decision of Minister or Officer under the rules
of business, is the decision of the President or the Governor. Shamsher Singh v. State of
Punjab, 1975(1) SCR 814: AIR 1974 SC 2192: 1974(2) SCC 831: 1974(2) SLR 701:
1974 Lab IC 1380: M.M. Gupta v. State of J&K, AIR 1982 SC 1579: 1983(1) SCR 593:
1982(3) SCC 412: 1983(1) SLR 160: 1982 Lab IC 1970: 1983(1) SLJ 82. Also see rules
8 & 9, Note 9.
7. Appointing Authority when Becomes Defunct — Where an appointing
authority has ceased to exist and its corresponding authority has been declared by
competent authority then the defunct authority”s status must be determined by the
corresponding authority thus created. Harbans Lal v. Union of India, 1970 SLR 173.
8. Appointment by Authority having no power to Appoint — If a person is
found to have been appointed by an authority who had no power or jurisdiction to make
such an appointment and on whom the Government has not delegated any such power
of appointment, the person so appointed cannot be said to have held a post under the
State which might attract the provisions of Article 311. Narayan Das v. Deputy
Commissioner of Darrang, Tezpur, AIR 1972 Assam 57. see also H. Lyngdoh v.
Cromlyn Lyngdoh, AIR 1971 SC 1110: 1971(3) SCR 903: 1971(2) SLR 330: 1971(1)
SCC 754, where the appointment was made without sanction and the services were also
terminated without sanction.
See also K.M.Agrahare v. Chief Secy. Delhi Admn., 1989(3) SLR 357 (CAT,
New Delhi).
Where the appointment was made by the Commandant General even though the
rule conferred power on the Provincial Government to make such appointments, held,
the Commandant General had the power to dismiss the appointee. The dismissal order
would not be void on the ground that it is made by an authority lower than the
appointing authority. Rama Nand Singh v. State of Bihar, 1982(1) SLR 693 (SC).
Clause (c).
9. “Civil Post” - Meaning of — In Article 311 a civil post means a post not
connected with defence outside the regular civil service. A post is a service or
employment. A person holding a post under a State is a person serving or employed
26 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.2
under the State. There is a relationship of master and servant between the State and a
person said to be holding a post under it. The existence of this relationship is indicated
by the State”s right to select and appoint the holder of the post, its right to suspend and
dismiss him, its right to control the manner and method of his doing the work and the
payment by it of his wages or remuneration. A relationship of master and servant may
be established by the presence of all or some of these indicia in conjunction with other
circumstances, and it is a question of fact in each case whether there is such a relation
between the State and the alleged holder of a post. In the context of Articles 309, 310
and 311, a post denotes an office. A person who holds a civil post under a State holds
“office”, during the pleasure of the Governor of the State, except as expressly provided
by the Constitution. A post under the State means a post under the administrative
control of the State. The State may create or abolish the post and may regulate the
conditions of service of persons appointed to the post. State of Assam v. Kanak
Chandra Dutt, 1967(2) SCR 7: 1967(63) ITR 656: 1967(2) SCJ 461: 1967(1) SCWR
228: AIR 1967 SC 884, see also Bihar State Typists” & Copyists” Union v. State of
Bihar, 1973(1) SLR 749: 1973 SLJ 512; Union of India v. M.A. Chaudhory, 1975(1)
SLR 300: 1975 Lab IC 423; Superintendent of Post Offices v. P.K. Rajamma, 1977(3)
SCR 678: AIR 1977 SC 1677: 1977(3) SCC 94: 1977 SLJ 532: 1977 SLR 226: 1977(2)
SCJ 321.
It is now settled law that the expression “civil post under the Union or a State”
in Article 311 means an appointment or office on the civil side of the administration as
distinguished from a post under the Defence Services and that the Article excludes only
the members of Defence Services and persons holding any post connected with defence.
Ganga Prasad Gurung v. Vijay Kumar, 1982 Lab IC 1884; State of Assam v. K.C.
Datta, 1967(2) SCR 7: 1967(63) ITR 656: 1967(2) SCJ 461: 1967(1) SCWR 228: AIR
1967 SC 884.
11. Civil Post Includes All Personnel Employed in Civil Affairs — Civil
post includes all, its personnel, whether permanent or temporary or officiating
employed in civil affairs of the Union or a State. Mohini Mohan Chakravarty v. State of
Tripura, AIR 1959 Tripura 2. A casual labourer is not the holder of a civil post. State of
Assam v. Kanak Chandra Dutt, 1967(2) SCR 7: 1967(63) ITR 656: 1967(2) SCJ 461:
1967(1) SCWR 228: AIR 1967 SC 884; Ganga Prasad Gurung v. Vijay Kumar, 1982
Lab IC 1884. See also Ranjit Kumar Manjumdar v. Union of India, 1995 SCR Supp(5)
717: 1996(1) SCC 51: 1996(1) SLR 35 (SC).
R.2] GENERAL 27
12. “Announcer” in All India Radio — “Announcer” in the All India Ratio
holds a civil post and is entitled to the protection of Article 311(2) of the Constitution.
Ilyas Ahmad v. Station Director, All India Radio, Hyderabad, 1979 SLJ 592: 1979(2)
SLR 651 (AP).
13. Chairman of Improvement Trust — Holds a civil post under the State
Government. Durga Prasad Tripathy v. State of Orissa, 1982(1) SLJ 1.
14. Contingent paid employees — Contingent paid persons do not hold civil
post. Mahendra Lal Chakrabarti v. Union Territory, AIR 1959 Tripura 21.
15. Contractor of Railway Tea and Refreshment Stalls — Contractor of
Railway tea and refreshment stalls is not a Railway servant and is not entitled to claim
protection under Article 311. Nanik Awatrai Chainani v. Union of India, 1971(2) SCJ
636: 1970(2) SCR 321: 1970 SLR 858.
16. Copyists and Typists in Courts of Bihar — Copyists and typists of the
revenue, civil and criminal courts, including the High Court, in the State of Bihar are
not Government Servants. They do not hold civil posts and the provision of Article 311
are not applicable to them. Bihar State Typists” & Copyist” Union v. State of Bihar,
1973 SLJ 512: 1973(1) SLR 749.
17. C.R.P.F. — The armed Force is a civil service and posts in it are civil
posts. U.B.S. Teotia v. Union of India, 1980(1) SLR 698; Ranjit Kumar Manjumdar v.
Union of India, 1996 SCR Supp(5) 717: 1996(1) SCC 51: 1996(1) SLR 35 (SC).
18. Dafadars of Chowkidars Appointed under Village Chowkidari Act —
Defadars or chowkidars appointed under Village Chowkidari Act (Bengal Act VI of
1870) hold a civil post under the State within the meaning of Article 311 of the
Constitution. Rajpati Dubey v. State of Bihar, 1973 SLJ 770.
19. Employees of C.S.D.(I) — Employees working in the establishment of
Canteen Services Department (India) are civil servants. Vigyan Bhushan Aggarwal v.
Union of India, 1977 SLJ 645: 1978(1) SLR 84.
20. Employees of College Registered under Societies Registration Act —
Such employees do not hold civil post. Anand Krishna Purohit v. Board of Governors,
Regional Engineering College, Kurukshetra, 1972 SLR 597: 1972 Cur LJ 525.
21. Employees of Co-operative Society or Bank — Employees of Co-
operative society or Provincial Co-operative Bank do not hold civil post under the
State. Ram Nath Sharma v. State of M.P., AIR 1959 MP 218; Chaturbhuj Sahai v.
Chairman, Board of Directors, AIR 1935 Pat 223; Dharampal Soni v. State of Punjab,
1973(2) SLR 845; Krishna Lal Pahwa v. State of Haryana, 1974 SLJ 229.
22. Employees of Council of Scientific and Industrial Research — The
council is a registered society and is not a public body, nor it is a Government. Its
employees do not hold civil post. Director General of Health Services v. Bikash
Chatterjee, AIR 1969 Cal 525: 1970 SLR 355. The Council is not an authority within
the meaning of Article 12 of the Constitution. Sabhajit Tewari v. Union of India, AIR
28 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.2
1975 SC 1329: 1975(3) SCR 616: 1975(1) SCC 485: 1975 SLJ 410: 1975(1) SLR 422:
1975 Lab IC 819.
23. Employees of Electricity Board — Employees of State Electricity Board
are neither member of the Civil Service of the Union or a State or hold a civil post
under the Union or a State and are not protected under Article 311. Jai Dayal v. State of
Punjab, AIR 1965 Punjab 316; Electricity Board, Rajasthan v. Mohan Lal, AIR 1967
SC 1857: 1967(3) SCR 377: 1967 SLR 373: 1970(21) FLR 59: 1968(1) LLJ 257, Punjab
State Electricity Board is not a “State” and its employees do not enjoy any statutory
status. Nirvir Singh v. Punjab Electricity Board, 1973(1) SLR 277: AIR 1973 Punjab
322; Raj Kumar Kulshreshtra v. Secretary, Rajasthan State Electricity Board, 1979(2)
SLR 733.
24. Employees of Hindustan Steel Ltd. — Hindustan Steel Ltd. is not a
department of the Government and its servants are not holders of civil posts. Dr. S.L.
Agarwal v. General Manager, Hindustan Steel Ltd., AIR 1970 SC 1150: 1970(3) SCR
363: 1970(1) SCC 177: 1970(1) SCWR 188: 1970(2) SCJ 605: 1970 SLR 351.
25. Employees of Indian Institute of Technology of Delhi — The
appointment of each employee by respondent is contractual. There is an ordinary
relationship of master and servant between them and nothing more. V. Ramamurthy v.
Indian Institute of Technology, 1973(1) SLR 701: 1973 SLJ 62 (Delhi).
26. Employees of Indian Oil Corporation — The employees of Indian Oil
Corporation Ltd. are not civil servants and cannot claim benefit of the Constitutional
protection granted under Article 311 or the rules framed under the proviso to Article
309. D.M. Nagaraja Rao v. Indian Oil Corporation Ltd., 1970 SLR 475.
27. Employees of Indian Standards Institution — Employees of Indian
Standards Institution do not hold civil post under the Union and are not entitled to
protection under Article 311. B.L. Bhatia v. Indian Standards Institution, 1973(2) SLR
694: 1974 SLJ 51.
Municipality, 1973 SLJ 490; M. Srinivasan v. President of District Board, AIR 1968
Mad 211.
30. Employees of Reserve Bank of India — Employees of the Reserve Bank
of India do not hold a civil post under the Union Government and therefore provisions
of Article 311(2) have no application to them. T.S. Varghese v. Reserve Bank of India,
1980(1) SLR 857.
31. Employees of Road Transport Corporation — Employees of State Road
Transport Corporation do not hold civil post and are not protected under Article 311.
General Manager, Pepsu Road Transport Corporation v. S. Gurdip Singh, 1964(66)
PLR 1040; Mafatlal Narain Dass Barot v. Rathod, 1967(1) SCWR 30: AIR 1966 SC
1364: 1966(3) SCR 40: 1967(1) SCJ 64.
32. Employees of Sainik Schools Society — Sainik Schools Society is a
Society registered under Societies Registration Act, 1860. Employees of, do not hold a
civil post. K.C. Thomas v. R.L. Gadeock, AIR 1970 Pat 164.
33. Employees of State Bank of India — (i) Employees of State Bank of India
do not hold post under the Union or a State. They are employees of a company
incorporated under the State Bank of India Act, 1955. Article 311 does not apply to
them. Suprasad Mukherjee v. State Bank of India, AIR 1960 Cal 72; Baleshwar Prasad
v. Agent, State Bank of India, AIR 1959 Pat 418.
(ii) Whether writ could issue against State Bank of India, whether its employee
could obtain declaration that termination of his service was a nullity and he continued
in service? See V. Ramiah v. State Bank of India, AIR 1964 Mad 335; Ramesh Krishna
Rao v. State Bank of India, 1974(2) SLR 622.
34. Employees of Statutory Corporations — Employees of statutory
corporations generally do not hold civil post. Statute under which the company or
corporation was created requires examination to hold the post unless it is a civil post
under the State. Abani Bhushan v. Hindustan Cables Ltd., AIR 1968 Cal 124; Ranjeet
Kumar Chatterjee v. Union of India, AIR 1969 Cal 95. In Sukhdev Singh v. Bhagatram,
AIR 1975 SC 1331: 1975(3) SCR 619: 1975(1) SCC 421: 1975 Lab IC 881: 1975(1)
SLR 605: 1975(45) Comp Cas 285, the Supreme Court has held that Oil and Natural
Gas Commission, Life Insurance Corporation and the Industrial Finance Corporation
are statutory bodies and authorities within the meaning of Article 12 of Constitution.
The employees of these bodies have a statutory status but they are not servants of the
Union or State. Also see Amar Nath Bhatia v. Trade Fair Authority of India, 1982(2)
SLR 670: 1982(2) SLJ 204.
Employees of statutory corporations though must be entitled to the protection
of Article 311 of the Constitution are entitled to the protection of Article 14 to 16 of the
Constitution. V. Rajagopal Reddy v. A.P.S.E.B. Hyderabad, 1984(1) 1 Andh LT 442
(AP).
35. Extra-departmental Branch Post Master or sub-Post Master — Extra
departmental Post Masters hold civil post. A. Surya Rao v. SPO, 1972 SLR 428;
Superintendent of Post Offices v. P.K. Rajamma, AIR 1977 SC 1677: 1977(3) SCR 664:
30 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.2
1977(3) SCC 260: 1977 Lab IC 904: 1977 SLJ 532: 1977(2) SLR 226: 1977(2) SCJ
321; Jogendra Bahadur v. Senior Supdt. of Post Office, 1972 SLR 799 (All). An extra-
departmental officer in the Postal Department holds a “civil post”. A.P. Augustine v.
Superintendent of Post Offices, 1984(2) SLR 163 (Ker), following Superintendent of
Post Offices v. P.K. Rajamma, 1977(2) SLR 226.
36. Extra Departmental Delivery Agent — Extra departmental delivery agent
holds a “civil post”. Subhas Chandra Das v. Inspector of Post Offices, AIR 1969 Kerala
244: 1968 SLR 337; Jogendra Bahadur v. Senior Superintendent of Post Offices, 1972
SLR 799: 1972 ALJ 693; Superintendent of Post Offices v. P.K. Rajamma, AIR 1977
SC 1677: 1977(3) SCR 664: 1977(3) SCC 260: 1977 Lab IC 904: 1977 SLJ 532:
1977(2) SLR 226: 1977(2) SCJ 321; Union of India v. Kameshwar Prasad, 1997(11)
SCC 650; Sub-Divisional Inspector of Post, Vaikam v. Theyyam Joseph, AIR 1996 SC
1271: 1996(8) SCC 489: 1996(2) JT 457: 1996 Lab IC 1059: 1996(72) FLR 690: 1996
SCC (L&S) 1012: 1996(2) SCJ 370: 1996(2) LLJ 230: 1996(88) FJR 597: 1996(2)
LLN 82.
37. General Manager, Court of Wards — General Manager, Court of Wards
in Bihar holds a civil Post under the State. P.N. Sarkar v. State of Bihar, AIR 1960
Pat 366.
38.. Homeguard — Homeguard appointed under the West Bengal Homeguards
Act, 1962, holds a civil post and is therefore entitled to all protection under Article 311
of the Constitution. Debabrata Banerjee v. Superintendent of Police, 24 Parganas,
1981(1) SLR 568: 1981(1) SLJ 328 (Cal.).
39. Honorary Officers — An Honorary Medical Officer under Government
holds civil post. Rebecea Chand Pillai v. State of Kerala, 1961 KLT 662.
40. Insurance, Medical Practitioner — Medical Practitioner under the
Employee”s State Insurance Act, 1948 does not hold a civil post under the Government.
Dr. Nanigopal Ghose v. State of West Bengal, AIR 1970 Cal 1.
41. Mali in Bihar Raj Bhawan — Mali in Raj Bhawan of Bihar is a servant of
a semi private nature even though he is paid from the Government funds. Lachmi v.
Military Secretary, AIR 1956 Pat 398.
42. Mauzadar in Assam valley — “Mauzadar” in Assam valley whose primary
duty is to collect land revenue and other Government dues with the collection of which
he is entrusted, is responsible for the collection of toll tax, house tax, tauzibahar
revenue, grazing fees and forest dues, has to submit weekly reports upon the condition
of crop, the prevalence of epidemics amongst men or cattle etc., is a holder of civil post
having regard to the system of his recruitment, employment and functions even though
he gets a commission on the collection by way of remuneration. State of Assam v.
Kanak Chandra Dutt, 1967(1) SCWR 228: AIR 1967 SC 884: 1967(1) SCR 679:
1968(1) LLJ 288: 1967(14) FLR 299: 1967(2) SCJ 461.
43. Notary — Notary appointed under Notaries Act, 1952 does not hold a civil
post. Phagu Ram v. State of Punjab, AIR 1965 Punjab 220: 19675 PLR 37.
R.2] GENERAL 31
44. Panel Lawyer — The position of a Panel Lawyer is that of an officer under
the State within the meaning of Article 16(1) of Constitution. Suresh Prakash Aggarwal
v. State of U.P., 1971(2) SLR 326.
45. Public Prosecutor — (i) Office of Public Prosecutor is a Public Office. A
Mohambaram v. M.A. Jayavelu, AIR 1970 Mad 63.
(ii) Public Prosecutor in Andhra Pradesh who is not appointed to the cadre in
State Service does not hold a civil post. B.V. Chalapathi v. State of A.P., 1969(2) Andh
WR 465: 1970 SLR 192.
(iii) Under Orissa Law Officers Rules, the appointment as Public Prosecutor
and Government Pleader is not an appointment to a post. The relationship of master and
servant is not brought by this appointment. The appointee is engaged on certain terms to
do duties assigned to him. Sudhansu Sekhar Misra v. State, 1976(1) SLR 477: 1976 Lab
IC 821.
46. Part-time Employees — A post outside the regularly constituted services
may be a part time employment. State of Assam v. Kanak Chandra Dutt, 1967(1)
SCWR 228: AIR 1967 SC 884: 1967(1) SCR 679: 1968(1) LLJ 288: 1967(14) FLR 299:
1967(2) SCJ 461.
47. Secretary under Bombay Village Panchayat Act — The post though civil
is not under the State. Ranchhodbhai Desaibhai v. Collector, AIR 1967 Guj 62.
48. Secretary under Karnataka Village and Local Boards Act, 1959 —
When sub-section (2) of Section 80 of the Karnataka Village and Local Boards Act,
1959 states that subject to the provisions of Rules made under the proviso of Article
309 of the Constitution, the qualifications, powers, duties, remuneration and conditions
of service including disciplinary matters of such Secretary shall be such as may be
prescribed, it leaves no room for doubt that the Secretaries of the Panchayats are
Government servants, like other Government servants, who are subjected to the Rules
to be made under the proviso to Article 309 of the Constitution as regards their service
conditions. R.N.A. Britto v. Chief Executive Officer, AIR 1995 SC 1636: 1995(4) SCC
8: 1995(4) JT 582: 1995(2) SCJ 209: 1995(2) SLR 699: 1995(30) ATC 159: 1995(2)
SLJ 222: 1996(1) LLN 17.
49. Staff Artist of All India Radio — In view of the service conditions and
the Agreement executed, it was held that he holds a civil post. Union of India v. M.A.
Chaudhary, 1975 Lab IC 423: 1975(1) SLR 360.
50. Tehsildar — Tehsildar appointed by Government treasurer holds a civil
post under the state and can claim benefit of Article 311. State of U.P. v. Audh Narain
Singh, AIR 1965 SC 360: 1964(7) SCR 89: 1964(9) FJR 238: 1964(2) SCJ 590.
51. Teacher in Panchayat Service — Teacher under the Gujarat Panchayat
Act is to be treated as a member of the State Civil Service. Mathura Das v. S.D.
Munshaw, AIR 1981 SC 53: 1981(1) SCJ 433. Teacher under Rajasthan Panchayat
Service is the holder of a civil post under the State. Mehtab Ali Khan v. B.D.O.,
Panchayat Samiti, 1981(2) SLR 539.
32 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.2
52. Trainees — Those person who were undergoing training with a view to
subsequently take service under the State, and were under an obligation to do so, were
serving in connection with the affairs of the State. Beant Singh Bath v. Union of India,
1969 SLR 304.
53. Village Munsif — Office of village Munsif under the Madras State was an
office under the State. Gazula Dasratha Rama Rao v. State of A.P., AIR 1961 SC 564:
1961(3) SCR 931: 1961(1) SCJ 310.
59. Judge of High Court— The relationship between the Government and
High Court Judges is not of master and servant. They cannot be said to be holding a
post under the Union/State. Union of India v. Pratibha Bonnerjea, AIR 1996 SC 693:
1995(6) SCC 765: 1996 SCC(L&S) 92: 1996(32) ATC 58: 1996(1) SLR 20: 1996(72)
FLR 93: 1996(1) LLN 29.
R.2] GENERAL 33
Clause (g)
60. Delegation of Powers — Under the Central Civil Services (Classification,
Control and Appeal Rules), 1985, Rule 4 states that the Civil services under the Union
shall be classified as Class A,B,C and D posts. Under Rule 6-A the word “group” has to
be substituted for the word “class” wherever the word “class” occurs. The appointment
to Class I (i.e. Group A) service and posts are to be made by the President of India as
per Rule 6 of the C.C.A. Rules. The proviso to Rule 9, however, says that the President
may, by a general or special order and subject to such conditions as he may specify in
such order, delegate to any other authority the power to make such appointments so far
class II, III, IV (i.e. Group B, C, D) are concerned. Rule 9 states that the appointing
authorities are specified in the schedule of CCA Rules, 1985. In other words, the power
of the President to appoint persons to Group B, C, D posts has been delegated but not
the power to appoint to Group A posts. Mohammed Swaleh v. Union of India, 1997(6)
SCC 200: 1997(10) JT 749: 1997(4) SLR 608: 1998(1) SLJ 1.
In the absence of any statutory provision expressly or impliedly permitting the
delegation of disciplinary powers, the disciplinary authority, if decides that disciplinary
action should be taken, must itself frame the charges and hold an inquiry into them. He
cannot be said to have delegated his functions merely by deputing a responsible and
competent official to enquire and report. Union of India v. P.K. Roy, 1968(2) SCJ 503:
1968(II) SCWR 41: 1968 SLR 104: AIR 1968 SC 850; Shardul Singh v. State of M.P.,
AIR 1966 MP 193; Pradyot Kumar v. C.J. of Calcutta, AIR 1956 SC 285: 1955(2) SCR
1331: 1956 SCJ 259; See also Uttar Pradesh Co-operative Land Development Bank Ltd.
v. Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC 741: 1998(9) JT 81: 1999(2)
SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3) SLJ 124.
An employee cannot be removed or dismissed by an authority other than by
which he was appointed unless the appointing authority has made prior delegation of
such authority to such other person or authority in writing. Uttar Pradesh Co-operative
Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC
741: 1998(9) JT 81: 1999(2) SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3)
SLJ 124.
Plea that disciplinary officer was only “in charge of the particular post and
hence incompetent to act” was rejected. G.N. Sundarraja v. Post Master, Kolar,
1990(2) SLR 624 (CAT Bangalore).
The “delegation of the function of the High Court in respect of punishment of
judicial officers” is an expression of width and of wide amplitude to cover within its
ambit the power to take a decision by the Committee from the stage of initiation of
disciplinary proceedings, if necessary, till its logical end, viz., recommendation to the
Government to impose a penalty proposed by the Committee. The recommendation is
by the High Court, the controlling authority under Article 235 of the Constitution.
Therefore, it is difficult to accept the contention that the delegation is only for
imposition of punishment on judicial officers. High Court of Judicature at Bombay v.
Shirishkumar Rangrao Patil, AIR 1997 SC 2631: 1997(6) SCC 339: 1997(2) LLN 470:
1997(76) FLR 659: 1997(2) SCJ 320: 1997(2) UJ 152: 1997(4) SLR 321.
34 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.3
Clause (h)
61. Government Servant or Municipal Servant — The question, whether a
person is a Government servant or a municipal servant can be determined by the
functions which he performs. If he performs the functions relating to a municipal
committee, he is a municipal officer, but if he performs the functions relating to
Government, he is a Government servant. State of Punjab v. Prem Prakash, AIR 1957
Punjab 219: 1957 PLR 270; Ram Chandra v. State of U.P., AIR 1969 All 480.
The Government service originates from a contract but on appointment the
Government servant acquired a status subject to rights and obligations governed by
statute or statutory rules. Government of Andhra Pradesh v. Syed Yousuddin Ahmed,
AIR 1997 SC 3439:1997(7) SCC 24: 1997(7) JT 395: 1997(5) SLR 219: 1998(1) SLJ
91: 1997 Lab IC 3361.
Clause (m)
62. Member of a Service — A person cannot be deemed to be a member of
service unless he is permanently absorbed therein. State of Punjab v. Prem Prakash,
AIR 1957 Punjab 219: 1957 PLR 270; Laxminarayan v. Union of India, AIR 1956 Nag
113. Past service rendered in different service can not be counted towards seniority.
Dev Raj Gupta v. State of Punjab, 2000(8) SLT 375: 2001(4) JT 82.
Where rules so provide a probationer can not claimed to be a member of
service unless the appointed authority so provides. M.P. Chandoria v. State of Madhya
Pradesh, AIR 1996 SC 2397: 1996(11) SCC 173: 1996(73) FLR 1699: 1996(2) UJ 326:
1996(3) SCJ 20: 1996(4) SLR 62.
63. Civilian Post in Defence Service — The CSS (CCA) Rules, 1965 is
applicable to the posts in defence service. Ranjit Kumar Majumdar v. Union of India,
1996(1) SCC 51: 1996(1) SLR 35 (SC): 1995(8) JT 350: 1996 SCC (L&S) 255:
1996(32) ATC 200.
R.3
1 This rule remained in force during the Proclamation of Emergency only in 1971
and now it is no more in operation.
36 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.3
COMMENTARY
SYNOPSIS
1. Classes of Government servants excluded from the operation of these rules under Sub-
rule (2) .............................................................................................................................. 36
2. Application of Part VI of these rules to work charged establishment ............................... 37
3. Application of rules to temporary Government servants and probationers ...................... 37
4. Civilian Government servants in Defence Services whether entitled to protection and
procedure provided by these rules .................................................................................... 38
5. Sub-rule (3-A), duration of .............................................................................................. 40
Purshottam Lal Dhingra v. Union of India, 1958 SCJ 217: 1958 SCR 828: AIR 1958
SC 36; State of U.P. v. Saughar Singh, AIR 1974 SC 423: 1974(1) SCC 218: 1975(1)
SCJ 12: 1974 SLJ 474: 1974(1) SLR 435: 1974(2) SCWR 80; State of Maharashtra v.
V.G. Koppar, AIR 1981 Bom 131.
When employee is appointed on a project and for the duration of that project,
the question of his services continuing automatically thereafter do not arise. IRCON
International Ltd. v. Daya Shankar, AIR 2002 SC 2404: 2002(9) SCC 691: 2001(10) JT
360: 2002 AIRSCW 2620: 2002 Lab IC 2319: 2002(1) LLJ 548: 2002(3) ESC 16:
2002(1) SLR 563 (SC). When the posts temporarily created for fulfilling the needs of a
particular project or scheme limited in its duration come to an end on account of the
need for the project itself having come to an end either because the project was fulfilled
or had to be abandoned wholly or partially for want of funds, the employer cannot by a
writ of mandamus be directed to continue employing such employees as have been
dislodged because such a direction would amount to requisition for creation of posts
though not required by the employer and funding such posts though the employer did
not have the funds available for the purpose. Rajendra v. State of Rajasthan, AIR 1999
SC 923: 1999(2) SCC 317: 1999(1) JT 278: 1999(1) SLR 636 (SC).
A temporary teacher in a leave vacancy cannot be considered as discharged nor
claim the status as discharged employee. Discharge would connote for any other reason
ejusdem generis due to abolition of the post or course of study or such similar
circumstances except for discharge due to misconduct. Such a teacher only will be
eligible to set up preferential claim for appointment but not a teacher who fortuitously
came to be appointed in a leave vacancy much less for a limited period. State of Kerala
v. Mother Anasthasia, Superior General, AIR 1997 SC 1310: 1997(1) SLR 705:
1997(10) SCC 79: 1997(2) LLN 618: 1997(76) FLR 1: 1997 Lab IC 1522.
Government servants, including those in the services connected with defence. The
benefits of Article 311, which impose limitations on the exercise of this power in cases
of punishment, do not extend to those who hold posts “connected with defence”. If the
employee (holder of posts connected with defence) was not entitled to the protection of
Article 311, the only effect of these 1965 Rules upon his case is that they could be
applied if disciplinary proceedings had been taken against him as the holder of a post
“connected with defence”. In other cases of such servants, where no such disciplinary
proceedings, are instituted, the 1965 Rules, governing procedure for punishments to be
imposed, will not apply at all. The legal obligation to apply them to every case of
punishment, flowing from Article 311, is confined to holders of posts covered by
Article 311. Union of India v. K.S. Subramonian, AIR 1976 SC 2433: 1976 SLJ 539:
1976(2) SLR 519. See also Ranjit Kumar Majumdar v. Union of India, 1996(1) SCC 51:
1996(1) SLR 35 (SC): 1995(8) JT 350: 1996 SCC (L&S) 255: 1996(32) ATC 200.
It was clarified by the Supreme Court in the above cited case that the doctrine
of pleasure contained in Article 310, while subject to Article 311, is not subject to the
Rules or Acts made under Article 309. It was, therefore, held that the Government was
bound to follow the Central Civil Services (Classification, Control & Appeal) Rules,
1965 only where the concerned Government servant was entitled to the protection of
Article 311; but not otherwise. In as much as the plaintiff was held not entitled to the
protection of Article 311 being holder of a post connected with the Defence the
following of the procedure prescribed by CCA Rules was held not to be obligatory. In
other words, the ratio of decision is that though the said Rules by their own force, apply
to holders of civil posts connected with Defence, still the Government is not bound to
follow the procedure prescribed by the said Rules, in the case of such persons. The
Government may choose to follow these Rules, or may not. It was reiterated that since
the said Rules cannot override the pleasure doctrine contained in Article 313, the
concerned Government servant cannot be granted any relief for not following the
procedure prescribed by the said Rules for termination. O. Ramachandra Reddy v.
Director, Defence, Research & Development Laboratory, 1980(1) SLR 490. Also see
V.Y. Thomas v. Commandant, A.D.C., 1982 Lab IC 632: 1982(2) SLR 39 (AP); Hazara
Singh v. Union of India, 1982(1) SLR 623.
Therefore it was held that employees serving in Defence can not claim any
protection under Art. 311 of the Constitution and CCS(CCA) Rules, 1965, which have
been framed under Art. 309 and subject to Art. 311. Union of India v. Indrajit Datta,
1995 Supp (3) SCC 229: 1995(5) SLR 228.
Income Tax Officer, while exercising quasi judicial functions, completed
assessments in an undue haste and conferred undue favour upon the assessees and in
violation of Conduct rules. It was held that there was no immunity from disciplinary
proceedings for a person exercising quasi judicial functions. Government is not
precluded from initiating disciplinary proceedings against such employee. Union of
India v. K.K. Dhawan, 1993(1) SLR 700: 1993(1) SLJ 396.
The disciplinary action can be taken in the following cases:
i) Where the officer had acted in a manner as would reflect on his reputation
for integrity good faith or devotion to duty;
40 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.3
PART II
CLASSIFICATION
R.4-7
4
. Classification of Services — (1) The Civil Services of the
Union shall be classified as follows:—
(i) Central Civil Service, Group A;
(ii) Central Civil Service, Group B;
(iii) Central Civil Service, Group C;
(iv) Central Civil Service, Group D;
(2) If a Service consists of more than one grade, different grades of
such Service may be included in different groups.
5.
Constitution of Central Civil Services — The Central Civil
Services, Group “A”, Group “B”, Group “C” and Group “D” shall
consist of the services and grades of service specified in the Schedule.
6.
Classification of Posts — Civil Posts under the Union other
than those ordinarily held by persons to whom these rules do not apply,
shall, by a general or special order of the President, be classified as
follows:—
(i) Central Civil Posts, Group A;
(ii) Central Civil Posts, Group B;
(iii) Central Civil Posts, Group C;
(iv) Central Civil Posts, Group D;
7.
General Central Service — Central Civil Posts of any Group
not included in any other Central Civil Service shall be deemed to be
included in the General Central Service of the corresponding Group and
a Government servant appointed to any such post shall be deemed to be
a member of that Service unless he is already a member of any other
Central Civil Service of the same group.
COMMENTARY
SYNOPSIS
26. Appointment made against gazetted post without gazetted status .................................... 56
27. Promotion with condition to draw emoluments of lower post .......................................... 56
28. General Central Service, a residuary service .................................................................... 56
29. Service, member of .......................................................................................................... 56
1. Classification of Civil Services of the Union — Rule 4 lays down that the
Civil Services of the Union shall be classified as Central Civil Services, Group A,
Group B, Group C and Group D. Present Rule was substituted vide Notification dated
the 11 th November, 1975 for old rule 4 which ran as follows:—.
“4. Classification of Services — (1) The Civil Services of the Union shall be
classified as follows:-.
(i) Central Civil Services, Class I;.
(ii) Central Civil Services, Class II;.
(iii) Central Civil Services, Class III;.
(iv) Central Civil Services, Class IV;.
2. If a service consists of more than one grade, different grades of such service
may be included in different classes”.
2. Constitution of Central Civil Services — Rule 5 deals with the constitution
of Central Civil Services. This rule was substituted vide Notification dated the 11 th
November, 1975 for old Rule 5 which ran as follows:.
“6. Constitution of Central Civil Services — The Central Civil Services, Class
I, Class II, Class III and Class IV shall consist of the Services and grades of Services
specified in the Schedule”.
3. Classification of Posts — Rule 6 was substituted vide Notification dated
11th November, 1975 for the old Rule 6 which was as under:—.
“6. Classification of Posts — (1) Civil Posts under the Union other than those
ordinarily held by persons to whom these rules do not apply, shall by a general or
special order of the President, be classified as follows:—.
(i) Central Civil Posts, Class I;
(ii) Central Civil Posts, Class II;.
(iii) Central Civil Posts, Class III;.
(iv) Central Civil Posts, Class IV;.
(2) Any order made by competent authority, and in force immediately before
the commencement of these rules, relating to classification of civil posts under the
Union shall continue to be in force until altered, rescinded or amended by any order
made by the President under Sub-rule (1)”.
44 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.4-7
The President vide aforesaid Notification has directed that all civil posts under
the Union shall (subject to such exceptions as Government may, by any general or
special order, make from time to time), be reclassified in Group A, Group B, Group C
and Group D, as the case may be, as indicated below:—.
Existing Classification Revised Classification.
Class I Group A.
Class II Group B.
Class III Group C.
Class IV Group D.
Provided that—.
(i) the classification of any posts created or deemed to have been created
on or after 1.1.1973 in revised scale but before the date of issue of this order, as
specific additions to cadres existing prior to 1.1.1973, shall be the same as that of the
posts in the cadres to which they have been added, and.
(ii) any other posts not covered by (i) above created or deemed to have
been created in the revised scale of pay on or after 1.1.1973 but before the date of issue
of this order having a classification higher than the one envisaged by para 2 of this
order shall be reclassified in terms of that paragraph but without prejudice to the status
of the existing incumbent of such posts.
2. Subject to reclassification of posts as indicated above and also subject to
such exceptions as Government may, by any general or special order, make from time,
all Central Civil Posts created subsequent to the issue of this order shall be classified as
follows:—.
Provided that posts created subsequent to the issue of this order as specific
additions to existing cadres shall have the same classification as posts in the cadre to
which they are added.
Note — for the purpose of this order,—.
(i) “pay” has the meaning assigned to it in F.R. (21)(a)(i).
(ii) the pay or scale of pay of a post means the pay or scale or pay prescribed
under the Central Service (Revised Pay) Rules, 1973.
4. Grade and Class, Meaning of — (i) Appointment are said to be in the same
class when they are in the same department, and bear the same designation or have been
declared by the Government of India to be in the same class. Appointment in the same
class are sometimes divided into grades according to pay (Article 29, Civil Service
Regulations).
Where there are a larger number of employees in any department and where the
employees are not likely to get their promotion in the near future because of their
comparatively low position in the seniority list, Government has found it necessary that,
in order to remove frustration, the employees are to be given a higher grade in terms of
emoluments while retaining them in the same category. This is what is generally known
as the time bound promotion. Such a time bound promotion does not effect the normal
seniority of those higher up. Dwijen Chandra Sarkar v. Union of India, AIR 1999 SC
598: 1999(2) SCC 119: 1999(1) SLR 39: 1999(1) LLJ 338: 1998(1) SCJ 519: 1998 Lab
IC 914: 1998(1) LLN 621.
It is permissible for the Government to prescribe appropriate qualifications in the
matter of appointment or promotion to different posts. The case put forth on behalf of the
respondents is that when they joined the service the requirement of passing the
matriculation was not needed and while they are in service such prescription has been made
to their detriment. But it is clear that there is no indefeasible right in the respondents to
claim for promotion to a higher grade to which qualification could be prescribed and there
is no guarantee that those rules framed by the Government in that behalf would always be
favourable to them. State of Jammu & Kashmir v. Shiv Ram Sharma, AIR 1999 SC 2012:
1999(3) SCC 653: 1999 Lab IC 2096: 1999(2) SLR 247 (SC).
Selection grade is provided to avoid stagnation at the highest slab in the grade.
It implies that when an employee has reached the maximum of his scale or he continues
to work in the same scale for a number of years, he may lose interest on account of
stagnation. Therefore, the Government has evolved the system of giving incentives for
such an employee by providing for selection grade. This is quite different from
promotion to a higher post and there is no question of any reservation in granting a
selection grade since that will run counter to the very purpose of providing selection
grade. State of Punjab v. Surjit Singh, AIR 2000 SC 3385: 1999(9) SCC 71: 2000 Lab
IC 1847: 2000(7) SLR 633 (SC).
Where an employee in order to be eligible to get the selection grade pay has to
complete 15 years of service and he is not to be given such scale of pay before he fulfils
the said eligibility criteria. It follows as a consequence that no employee can claim
46 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.4-7
selection grade pay before completing 15 years of service on any ground including the
ground that an employee junior to him has already been given such grade of pay. State
of Punjab v. Kuldip Singh, AIR 2002 SC 2492: 2002(5) SCC 756: 2002(5) JT 205:
2002(4) SLR 771 (SC): 2002 Lab IC 2621: 2002(2) BLJR 1596: 2002(94) FLR 871:
2002 SCC(L&S) 814: 2002(3) SLJ 202.
When appointment on ad-hoc basis was made by clearly stipulating that the ad
hoc service shall not be counted towards seniority, subsequent claim of selection grade
by including the service referred on ad hoc basis in the past service is not proper. Held
that service of employees commenced on regular appointment after selection of UPSC
and not earlier. State of Haryana v. Haryana Veterinary & A.H.T.S. Asson., AIR 2000
SC 3020: 2000(8) SCC 4: 2000(10) JT 561: 2000 Lab IC 3127: 2000(4) LLN 588:
2000(5) SLR 223 (SC).
Even though an employee cannot claim to have a vested right to have a
particular position in any grade, but all the same he has the right of his seniority being
determined in accordance with the Rules which remained in force at the time when he
was borne in the Cadre. P. Mohan Reddy v. E.A.A. Charles, AIR 2001 SC 1210:
2001(4) SCC 433: 2001(2) JT 1: 2001(1) SLR 787 (SC): 2001(2) Andh LD 57: 2001
SCC (L&S) 718.
In the absence of any specific rule holding that the continuous length of service
would be the basis for seniority in a particular grade, entry into the grade is the normal
rule for promotion. Union of India v. C. Jayaprakasan, 2001(4) SLR 29 (SC): 2001(5)
JT 557.
“Promotion” thus not only covers advancement to a higher grade. In service
law also the expression “promotion” has been understood in the wider sense and it has
been held that “promotion can be either to a higher pay scale or to a higher post”. State
of Rajasthan v. Fateh Chand Soni, 1996(1) SCC 562: 1995(9) JT 523: 1996 SCC(L&S)
340: 1996(32) ATC 488: 1996(1) SLR 1.
(ii) All officials working in the same scale of pay in a department, although
holding posts with different designations, shall be deemed to be holding posts in the
same grade, because their rank in the same department will be the same and equal to
one another. Hari Nandan Sharan Bhatnagar v. S.N. Dikshit, AIR 1970 SC 40: 1970(1)
SCR 421: 1969(2) SCC 245: 1969(2) SCJ 862: 1970 Lab IC 1.
(iii) The word “grade” has various shades of meaning in the service
jurisprudence. It is sometimes used to denote to pay scale and sometimes a cadre. A.K.
Subraman v. Union of India, 1975(2) SCJ 357: AIR 1975 SC 483: 1975(2) SCR 979:
1975(1) SCC 319: 1975 Lab IC 254: 1975(1) SLR 380: 1975(1) LLJ 338.
(iv) Meaning of expression “regular service in grade” — The expression “regular
service of eight years in the grade” would connote rendering eight years of service in the
organisation to which he has been appointed. In a somewhat similar situation, the Court
considered similar expression in the case of Union of India v. K. Savitri, (1998) 2 Scale 221,
where it has been held that the past service of redeployed surplus employee cannot be
counted for his seniority in the new organisation and equally, the past experience also
would not count as the so- called past service rendered will not be service in the grade.
R.4-7] CLASSIFICATION 47
Union of India v. G.R.K. Sharma, AIR 1999 SC 535: 1998(6) SCC 186: 1998(7) JT 241:
1998(80) FLR 909: 1999 Lab IC 219: 1998(4) LLN 27.
When right from the inception even under the Government the post of
conductor and the post cleaner-cum-conductor were borne in two different grades and
belong to two different cadres, by mere nomenclature, the expression “cleaner-cum-
conductor” cannot be held to be the same as “Conductor”. Himachal Road Transport
Corporation Conductors” Union v. Himachal Road Transport Corporation, 2001(4)
SLR 27 (SC): 2001(5) JT 554.
5. Post, Meaning of — A post denotes an office. A “post under the State” means a
post under the administrative control of the State. State of Assam v. Nanak Chandra Dutt,
AIR 1967 SC 884: 1967(1) SCR 679: 1968(1) LLJ 288: 1967(14) FLR 299: 1967(1) SCWR
228. One step lower mean the appointments on a lower post. State of Haryana v. Kanta
Rani, 2000(10) JT 496: 2000(87) FLR 568: 2000(5) SLR 178 (SC).
An individual applicant for any particular post does not get a right to be
enforced by a mandamus unless and until he is selected in the process of selection and
gets the letter of appointment. Union of India v. Tarun K. Singh, AIR 2002 SC 2196:
2001 AIRSCW 1928: 2001(2) Pat LJR 81: 2001(2) BLJ 162: 2002(2) SLR 195 (SC).
Continuance or abolition of posts is within the power of the employer and any
decision in that regard is not available to be interfered with by the Court unless it is
held to be vitiated by mala fide or arbitrary. Notified Area Council, Pipili v. Gahar
Mohammad, 2001(3) JT 576: 2002(2) SLR 199 (SC).
6. Posts and judicial review— In the matter of equation of posts or equation
of pay, the same should be left to the Executive Government, who can get it determined
by expert bodies like Pay Commission, and such Expert body would be the best judge to
evaluate the nature of duties and responsibilities of posts and when such determination
by a Commission or Committee is made the Court should normally accept it and should
not try to tinker with such equivalence unless it is shown that it was made with
extraneous consideration. Kshetriya Kisan Gramin Bank v. D.B. Sharma, 2001 AIR SC
168: 2001(1) SCC 353: 2000(2) JT (Supp) 596: 20001 AIRSCW 279: 2001(1) Bank
CLR 405: 2001 SCC (L&S) 1000: 2001(1) All WC 279: 2000(5) SLR 770 (SC) relying
upon State of U.P. v. J.P. Chaurasia, 1979(1) SCC 121.
In one case it was contended that if the post of a Lecturer in Gandhian Studies
is given to a person who has obtained an M.A. degree in other subjects, the
opportunities available to those like him, who have a specialisation in Gandhian Studies
from M.A. level onwards, get reduced; and this would discourage people from taking a
specialisation course in Gandhian Studies at the M.A. level. Held that this argument,
however, addresses itself on the policy relating to prescribing qualifications for the
various posts. Such a policy has to be formulated by the University is accordance with
the norms laid down by the University Grants Commission or any other expert body
that may have been specified under the relevant statues. Court cannot examine such a
policy or reframe it. Punjab University v. Narinder Kumar, AIR 2000 SC 3457:
1999(10) JT 545: 1999(9) SCC 8: 2000(7) SLR 1 (SC).
48 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.4-7
dislodged because such a direction would amount to requisition for creation of posts
though not required by the employer and funding such posts though the employer did
not have the funds available for the purpose. Rajendra v. State of Rajasthan, AIR 1999
SC 923: 1999(2) SCC 317: 1999(1) JT 278: 1999(1) SLR 636 (SC).
10. Tenure Post, Meaning of — Tenure post means a permanent post which an
individual Government servant may not hold for more than a limited period. [F.R. 9
(30-A)].
11. Cadre (i) Meaning of — (i) Cadre means the strength of a service or a part
of a service which is sanctioned as a separate unit. [F.R. 9(4)]. Also see Rule 2.9. in the
Punjab Civil Services Rules, Volume I, Chapter II in which cadre is defined, which
means the strength of a service or a part of service sanctioned as a separate unit.
Satwant Kochhar v. State of Punjab, 1983(1) SLJ 24.
Cadre ordinarily may include permanent posts, but posts may be created of a
temporary nature to perform the ordinary work for which permanent posts already exist
in the cadre. Such new posts are temporary and are temporary additions to the cadre of
a service. A cadre, therefore, may consist wholly of permanent posts or it may include
within its fold permanent as well as temporary posts. G.R. Luthra v. Administrator (Lt.
Governor of Delhi), 1973 SLJ 115: 1973(1) SLR 54; A.K. Subraman v. Union of India,
1975(2) SCJ 367: AIR 1975 Lab IC 483: 1975(1) SLR 380.
(ii) Cadre — Punjab Civil Services Rules apparently envisage a cadre which is
for permanent posts for the performance of the ordinary work of such posts, though
temporary posts may be created as an addition to a cadre obviously to meet a
contingency and for a time. Jugraj Singh v. State of Punjab, 1969 SLR 622 (FB), also
see Lajpat Rai Margo v. Governor of Haryana, AIR 1971 P&H 113, wherein it was
held that the word “cadre” would include both permanent and temporary posts.
(iii) Cadre, Constitution of — It is open to the State Government to constitute
as many cadres as they choose according to administrative convenience and expediency.
Per Goswami J., in C.P. Damodaran Nayar v. State of Kerala, 1974(1) SLR 488: AIR
1974 SC 1343: 1974(2) SCR 867: 1974(4) SCC 325: 1974 Lab IC 994; Raj Nandan
Prasad Singh (Dr) v. State of Bihar, 1975(1) SLR 258; Des Raj Dua v. Lt. Governor,
Delhi, 1982(2) SLJ 326: 1982(2) SLR 681; Satwant Kochhar v. State of Punjab,
1983(1) SLJ 24.
Government has the power to create a cadre, to split a cadre or to amalgamate
to separate cadres into one. The only restriction in the matter of splitting or
amalgamation of cadres is that it must be done on a rational and reasonable differentia.
B.M. Shukla v. State of Bihar, 1976(1) SLR 256; State of Kerala v. M.K. Krishnan Nair,
1978(1) SLR 499: 1978(2) SCJ 531; V.R. Shambulinga v. State of Karnataka, 1980 SLJ
425:1980(2) SLR 413.
12. Cadre, Integration of — Article 16 and a fortiori also Article 14 do not
forbid the creation of different cadres for Government service. And if that be so, these
two Articles equally cannot stand in the way of the State integrating different cadres
into one cadre. It is entirely a matter for the State to decide whether to have several
different cadres or integrated cadre in its services. Reserve Bank of India v. N.C.
50 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.4-7
Paliwal, AIR 1976 SC 2345: 1977(1) SCR 403: 1976(4) SCC 838: 1976 SLJ 569:
1976(2) SLR 774.
(i) When recruits from two sources have come into a service it is essential to
fix inter se seniority for a proper integration of the cadre. Bishan Sarup Gupta v. Union
of India, AIR 1974 SC 1618: 1975(1) SCR 104: 1975(3) SCC 116: 1974(2) SLR 186.
Also see Mervyn Continho v. Collector of Customs, 1967(1) SCJ 574: 1966(3) SCR
600: AIR 1967 SC 52: 1967 SLR 1; S.M. Pandit v. State of Gujarat, AIR 1972 SC 252:
1972(4) SCC 778: 1972 SLR 79: 1972 Lab IC 155.
(ii) While integrating two separate units into one cadre the number of
promotional posts available to one unit cannot be reduced to a very low figure as
compared with promotional opportunities open to the officers in the other wing. State of
Mysore v. M.H. Krishna Murthy, 1974(1) SCJ 54: 1972 SLR 832: 1972(II) SCWR 591.
(iii) Where directly recruited as well as promotees form one class, they are both
known by the same designation, they have same scales of pay, they discharge the same
functions, the posts held by them are interchangeable and there is nothing to show that
the two groups are kept apart, if they are merged together in the same class, it is not
competent to the Government thereafter to discriminate between the two groups in the
matter of further promotion. Ramchandra Shankar Deodhar v. State of Maharashtra,
1974(1) SLR 470: AIR 1974 SC 259: 1974(2) SCR 216: 1974(1) SCC 317: 1974 Lab IC
165.
In New Bank of India Employees” Union v. Union of India, 1996(8) SCC 407:
1997(2) SLR 348 (SC), placement of officers of a particular bank, after its
amalgamation with another bank was the subject matter of challenge and in that
context, this Court had observed: “The legal position is fairly settled that no scheme of
Amalgamation can be fool proof and a Court would be entitled to interfere only when it
comes to the conclusion that either the scheme is arbitrary or irrational or has been
framed on some extraneous consideration.” What has been observed in the case of
amalgamation, would equally apply to a case of restructuring of the cadre and
placement and fitment of the existing employees in the restructured cadre. K.
Thimmappa v. Chairman, Central BD. Of Dirs. SBI, AIR 2001 SC 467: 2001(2) SCC
259: 2001(1) JT 347: 2001(1) SLR 625 (SC): 2001(3) All Mah LR 807: 2001(1) Bank
CLR 389: 2001 SCC (L&S) 374; See also Tarsem Lal Gautam v. State Bank of Patiala,
1988(3) SCR Supp 479: AIR 1989 SC 30: 1989(1) SCC 182: 1989(5) SLR 396 (SC):
R.4-7] CLASSIFICATION 51
1988(1) JT 184: 1989 Lab IC 1138: 1988(2) ATLT (SC) 560: 1989 SCC (Lab) 139:
1989 BankJ 67: 1989(1) Bank CLR 1: 1989(1) UPLBEC 5: 1989(1) ATR 236.
Integration or disintegration of Cadres is an executive act. It was held that
direction by High Court for merger of two statutory services without even referring to
the relevant Recruitment Rules is patently illegal. Association for the Officers of the
W.B. Audit & Accounts Service v. W.B. Audit & Accounts Service Association, 1995
Supp (4) SCC 44: 1996(32) ATC 65: 1995(8) SLR 657.
13. Joint Cadre for Union Territories — If persons employed in Union
Territories are employed in connection with the affairs of the Union, their making a
joint cadre for such territories would obviously be within the scope of Article 309.
Jaichand v. Union of India, 1969 SLR 386 Delhi (DB).
14. Ex-cadre Posts are Temporary — What are described as ex-cadre posts
are essentially temporary in nature and persons who have been allowed to officiate in
these posts cannot be said to have received any substantive right to hold these posts.
Gurdev Singh Gill v. State of Punjab, 1968 SLR 538.
15. Ex-cadre Posts, Creation and Abolition of — (i) It is essentially a matter
for the Government to decide. It is not open to the Court to go behind the wisdom of the
decision and substitute its own opinion for that of the Government. The decision to
abolish the post should, however, be taken in good faith and be not used as a cloak or
pretence to terminate the services of a person holding that post. On abolition of post the
lien of permanent hand holding the ex-cadre post will stand revived to his permanent
post. State of Haryana v. Des Raj Sangar, AIR 1976 SC 1199: 1976(2) SCR 1034:
1976(2) SCC 844: 1976(1) SLR 191: 1976 SLJ 222: 1976 Lab IC 849.
(ii) A State Government cannot create ex-cadre post of All India Services. This
will create parallel services of State cadre and the all India cadre having the same
functions. A.I. Iyppu v. State of Tamil Nadu, 1974(1) SLR 497 (SC): AIR 1974 SC 555:
1974(2) SCR 348: 1974(4) SCC 3.
(iii) The encadring of posts can be done only on certain fact situations existing
Government in consultation with the State Government and on being satisfied that an
enhancement in the cadre strength or encadring of certain posts is necessary in the
administrative interest of the States concerned. Until such encadrement takes place, no
body could stake a claim to consider their case for promotion to those ex-cadre posts.
Tamil Nadu Administrative Service Officers Association v. Union of India, AIR 2000
SC 1898: 2000 SC(5) 728: 2000(3) LLN 474: 2000(2) SLR 659 (SC).
Article 207 does not itself provide for the procedure for abolition of a
permanent post nor the mode of appointment to another post nor for the manner in
which the employee has to exercise the option. It only provides for the consequence of
a permanent post being abolished, the consequence being that the employee shall have
the option of accepting another appointment in which event he can count his previous
service for the purpose of calculating the qualifying period for pension. When there was
in fact no abolition of the Government posts under Article 207, there was no question of
the appellants exercising any option or surrendering their status under that Article at all.
The reliance by the High Court on Article 207 to decide the appellants status was, in the
52 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.4-7
circumstances wholly misplaced. Jawahar Lal Sazawal v. State of Jammu and Kashmir,
AIR 2002 SC 1187: 2002(2) SCR 66: 2002(3) SCC 219: 2002(2) LLJ 836: 2002(2) SLJ
284: 2002(2) SCJ 188: 2002(2) SLR 412.
16. Cadre and judicial review — Cadre Rules require that the Central
Government has to re-examine the strength and composition of each cadre in consultation
with the State Government concerned and make such alteration therein as it deems fit. If
there has been an infraction of the provisions and no explanation is forth coming from the
Central Government, indicating the circumstances under which the exercise could not be
undertaken, the aggrieved party may well approach a Court and a Court in its turn would be
well within its jurisdiction to issue appropriate directions, depending upon the
circumstances of the case. When certain power has been conferred upon the Central
Government for examining the cadre strength, necessarily the same is coupled with duty to
comply with the requirements of the law and any infraction on that score cannot be whittled
down on the hypothesis that no vested right of any employee is being jeopardised. S.
Ramanathan v. Union of India, 2001(1) SLR 616 (SC): 2001(5) JT 494.
17. Rank, Meaning of — The meaning attached to the word “rank” is that it is
a class or grade of service. One rank is distinguished from another only by the
classification of services or posts within which they respectively fall. S.K. Srivastava v.
Union of India, 1971(2) SLR 453 (Delhi) : 1971(1) ILR (Delhi) 754 (DB).
18. Office under the State: Law Officers of High Court — In order that a
post or position should be an “office” under the State, it is not necessary that the
incumbent must be a servant of the State. The posts or positions of the law officers in
the High Court are “offices”. State of U.P. v. B.N. Srivastava, AIR 1972 All 460.
19. Constitution of Service or Creation of a Post — No limitation can be
imposed on the Government or a statutory body in its choice of constitution of service
or creation of a post, to perform the duties enjoyed on Government or statutory body.
Parmanand Garg v. Municipal Corporation, 1973 SLJ 293.
Appointments to any public post must be absolutely transparent and fair and
must be in accordance with the prescribed procedure. This is the reason why this Court
has been indicating that even ad-hoc appointments should not be encouraged as far as
possible and should be adhered to only when public exigencies require and appointment
in accordance with the prescribed procedure would take a fairly long time and non-
filling up of the posts would be against the public interest. Dilip Kumar Tripathy v.
State of Orissa, AIR 1997 SC 440: 1996(10) SCC 373: 1996(3) SCJ 239: 1996(3) SLJ
112: 1996(5) SLR 640: 1997(75) FLR 306.
20. Creation and Abolition of Posts — (i) The power to create or abolish a
post is not related to the doctrine of pleasure. It is matter of governmental policy. Every
Sovereign Government has this power in the interest and necessity of internal
administration. The creation or abolition of post is dictated by policy decision,
exigencies of circumstances and administrative necessity. The creation, the continuance
and the abolition of post are all dictated by the Government in the interest of
administration and general public. The State action of abolition of a civil post must be
the result of bona fide exercise of inherent power of the State. Ramanatha Pillai v.
R.4-7] CLASSIFICATION 53
State of Kerala, 1974(1) SCWR 1: AIR 1973 SC 2641: 1974(1) SCR 515: 1973(2) SCC
650: 1974(1) SLR 225; State of Haryana v. Des Raj Sangar, AIR 1976 SC 1199:
1976(2) SCR 1034: 1976(2) SCC 844: 1976(1) SLR 191: 1976 SLJ 222: 1976 Lab IC
849; Dr. N.C. Singhal v. Union of India, AIR 1980 SC 1255: 1980(3) SCR 44: 1980(3)
SCC 29: 1980(2) SLR 118: 1980(2) SLR 118: 1980 SLJ 408; V.R. Shambhulinga v.
State of Karnataka, 1980(2) SLR 413; Union of India v. T. Ramaiah, 1982(2) SLR 442.
(ii) There is no fundamental right or any kind of right in the incumbents of
posts under the Government that these posts must be continued for any amount of time.
The Government has the discretion to create and abolish posts. The incumbents of the
posts so abolished automatically go out of the service. Dr. S.C. Sharma v. Union of
India, AIR 1970 Delhi 1: 1970 Lab IC 31: 1971(2) SLR 424.
Even when there is a vacancy, the State is not bound to fill up such vacancy nor
is there any corresponding right vested in an eligible employee to demand that such
post be filled up. This is because the decision to fill up a vacancy or not vests with the
employer who for good reasons; be it administrative, economical or policy; decide not
to fill up such posts. This principle applies with all the more force in regard to the
creation of new vacancies like by encadrement of new posts; more so when such
encadrement or creation of new posts is statutory controlled. Tamil Nadu Administrative
Service Officers Association v. Union of India, AIR 2000 SC 1898: 2000 SC(5) 728:
2000(3) LLN 474: 2000(2) SLR 659 (SC); See also State of Haryana v. Subhash
Chandra Marwaha, 1974(3) SCC 220: 1973(2) SLR 137 (SC).
No person should be appointed who is not found suitable for the post for which
he had applied and also no person should be appointed who had not been able to secure
the minimum qualification mark. Andaman & Nicobar Administration v. Jolly George
(Smt)., 2001(1) SLR 538 Cal (DB).
(iii) When the post created for ad hoc appointment, itself stood abolished, the
holder of the post ceases to continue from the date of abolition of the post. Therefore no
enquiry is required to be conducted before termination on account of abolition of post.
Shri Maheshwari Senior Higher Secondary v. Bhikha Ram Sharma, 1996(8) SCC 22:
1996(2) JT 640: 1996(1) UJ 670: 1996(2) SLR 16(2): 1996 SCC(L&S) 815: 1996(73)
FLR 1011: 1996(5) SLR 368.
Though it is not for the Court to examine the wisdom of the executive with
regard to the retention or abolition of a post and substitute its decision for one of the
Government, even so, the order will come under judicial scrutiny if it appears that the
power has not been exercised bona fide, but for some collateral or oblique purpose. The
decision to abolish a post must not be a cloak or pretence to terminate the services of
the person holding the post. Abolition of a post which is not by way of penalty on the
holder thereof does not thus attract Article 311(2). Rabindra Nath Mukherjee v. S.R.
Dass, 1979(2) SLR 807.
(iv) It is essentially a matter for the Government to decide. It is not open to the
Court to go behind the wisdom of the decision and substitute its own opinion for that of
the Government. The decision to abolish the post should, however, be taken in good
faith and be not used as a cloak or pretence to terminate the services of a person holding
54 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.4-7
that post. On abolition of post the lien of permanent hand holding the ex-cadre post will
stand revived to his permanent post. State of Haryana v. Des Raj Sangar, AIR 1976 SC
1199: 1976(2) SCR 1034: 1976(2) SCC 844: 1976(1) SLR 191: 1976 SLJ 222: 1976
Lab IC 849.
In modern administration, it is necessary to recognise the existence of the
power with the Legislature or the Executive to create or abolish posts in the civil
service of the State. Any action legislative or executive taken pursuant to that power is
always subject to judicial review. The termination of service brought about by the
abolition of a post effected in good faith does not attract Article 311(2) of the
Constitution. K. Rajendran v. State of Tamil Nadu, AIR 1982 SC 1107: 1982(2) SCC
380: 1982 Cr LJ 1396: 1982 CrLR(SC) 555: 1982 SCC(Cr) 440: 1982 CAR 161: 1982
Lab IC 876: 1982(1) SLJ 604: 1982(2) SLR 196.
(v) Article 207 does not itself provide for the procedure for abolition of a
permanent post nor the mode of appointment to another post nor for the manner in
which the employee has to exercise the option. It only provides for the consequence of
a permanent post being abolished, the consequence being that the employee shall have
the option of accepting another appointment in which event he can count his previous
service for the purpose of calculating the qualifying period for pension. When there was
in fact no abolition of the Government posts under Article 207, there was no question of
the appellants exercising any option or surrendering their status under that Article at all.
The reliance by the High Court on Article 207 to decide the appellants status was, in the
circumstances wholly misplaced. Jawahar Lal Sazawal v. State of Jammu and Kashmir,
AIR 2002 SC 1187: 2002(2) SCR 66: 2002(3) SCC 219: 2002(2) LLJ 836: 2002(2) SLJ
284: 2002(2) SCJ 188: 2002(2) SLR 412.
21. Equation of Posts in New Department — When personnel drawn from
different sources are being absorbed and integrated in a new department, it is primarily
for the Government or the executive authority concerned to decide as a matter of policy
how the equation of posts should be effected. The Courts will not interfere with such a
decision unless it is shown to be arbitrary, unreasonable or unfair. R.S. Makoshi v. I.M.
Menon, AIR 1982 SC 101: 1982(2) SCR 69: 1982(1) SCC 379: 1982(1) LLN 235:
1981(3) SLR 280: 1982 SCC(Lab) 77: 1981(3) SLR 280 (SC).
It is the prerogative of the Government to create, reduce or abolish and to
provide cadre strength and procedure for appointed on encadred posts; whether they are
appointed on deputation from RAS, IAS or other source has been left to the
Government under the rules. The petitioners have no right to say that the rules should
be framed or constituted or modified or substituted to suit them for enhancing the
chances of promotion of in-service candidates nor the State Government can be
compelled to increase the cadred posts. Rajasthan Excise Service Association, Jaipur v.
Mani Ram Inania, 2002(3) SLR 517 Raj.
22. Abolition of Post and Compulsory Transfer to University — Institution
stood transferred to the University and posts which were in the department were
abolished, which were no longer available in the department. Employees were offered
employment in the University. Held, abolition of posts did have the effect of putting an
end to the status and this could not be done without complying the provisions of Article
R.4-7] CLASSIFICATION 55
311(2). Laiq Ram v. State of H.P., 1972 SLR 819; State of Himachal Pradesh v.
Director of Agriculture, 1973(1) SLR 1112.
23. Abolition of post and transfer of company— Even though the workers
may have interest in the manner in which the Company is conducting its business,
inasmuch as its policy decision may have an impact on the workers” rights, nevertheless
it is an incidence of service for an employee to accept a decision of the employer which
has been honestly taken and which is not contrary to law. Even a government servant,
having the protection of not only Articles 14 and 16 of the Constitution but also of
Article 311, has no absolute right to remain in service. For example, apart from cases of
disciplinary action, the services of government servants can be terminated if posts are
abolished. If such employee cannot make a grievance based on part III of the
Constitution or Article 311 then it cannot stand to reason that like the petitioner, non-
government employees working in a company which by reason of judicial
pronouncement may be regarded as a State for the purpose of part III of the
Constitution, can claim a superior or a better right than a government servant and
impugn it”s change of status. In taking of a policy decision in economic matters at
length, the principles of natural justice have no role to play. Even though the employees
of the company may have an interest in seeing as to how the company is managed, it
will not be possible to accept the contentions that in the process of disinvestment, the
principles of natural justice would be applicable and that the workers, or for that matter
any other party having an interest therein, would have a right of being heard. As a
matter of good governance and administration whenever such policy decisions are
taken, it is desirable that there should be wide range of consultations including
considering any representations which may have been filed, but there is no provision in
law which would require a hearing to be granted before taking a policy decision. In
exercise of executive powers, policy decisions have to be taken from time to time. It
will be impossible and impracticable to give a formal hearing to those who may be
affected whenever a policy decision is taken. BALCO Employees” Union (Regd.) v.
Union of India, 2001(10) JT 466: 2002(1) LLJ 550: 2002(1) SCJ 123: AIR 2002 SC
350: 2002(2) SCC 333.
When the post created for ad hoc appointment, itself stood abolished, the
holder of the post ceases to continue from the date of abolition of the post. Therefore no
enquiry is required to be conducted before termination on account of abolition of post.
Shri Maheshwari Senior Higher Secondary v. Bhikha Ram Sharma, 1996(8) SCC 22:
1996(2) JT 640: 1996(1) UJ 670: 1996(2) SLR 16(2): 1996 SCC(L&S) 815: 1996(73)
FLR 1011: 1996(5) SLR 368.
56 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.4-7
25. Services and Posts in Union Territory — The services and posts in a
Union Territory are services and posts in connection with the affairs of the Union.
Rules made by President under Article 309 are valid and operative. Jaichand v. Union
of India, 1969 SLR 386 Delhi (DB).
26. Appointment made against Gazetted Post without Gazetted Status —
Petitioner”s appointment was made against the post of gazetted Asstt. Engineer but in
the order it was stated that though he will be considered as Asstt. Engineer but will not
have the Gazetted status. Held, petitioner cannot be denied of the benefits attached to
the post as Asstt. Engineer. He is entitled of all benefits attached to the said gazetted
post. Nirmal Chandra Sen v. State of West Bengal, 1973 SLJ 710: 1973(1) SLR 1097.
27. Promotion with Condition to Draw Emoluments of Lower Post —
Occupant of Class III post became occupant of Class II post without being entitled to
the emoluments claimable in respect of that post. Part of order by which direction was
given that petitioner should draw the emoluments of a lower post to be ignored as no
such condition could be imposed. R.N. Rajana v. State of Mysore, 1970 SLR 107
(Mysore).
28. General Central Service is a Residuary Central Service — General
Central Service is a “residuary” Central Service. Commissioner of Transport, H.P.
Govt. v. Narain Das, 1974(1) SLR 386: 1974 SLJ 621.
29. Service, Member of — A person cannot be deemed to be a member of
service unless he is permanently absorbed therein. State of Punjab v. Prem Prakash,
AIR 1957 Punjab 219; 1957 PLR 270; Laxminarayan v. Union of India, AIR 1956 Nag
113. Permanent service and temporary service are two well recognised and distinct
concepts; while a permanent servant has title to the post, a temporary servant has no
right to the post. Dr. Binoy Kumar Das v. State of Orissa, 1974 SLJ 222: 1974(1) SLR
320.
R.8-9] APPOINTING AUTHORITY 57
PART III
APPOINTING AUTHORITY
R.8-9
8.
Appointment to (Class I) Group A Services and Posts — All
appointments to Central Civil Service (Class I) Group A and Central
Civil Posts (Class I) Group A, shall be made by the President:
Provided that the President may, by a general or a special order and
subject to such conditions as he may specify in such order, delegate to
any other authority the power to make such appointments.
COMMENTARY
SYNOPSIS
44. Reservation for Scheduled Castes and Scheduled Tribes, standard in qualifying
examination ...................................................................................................................... 83
45. Reservation of vacancies for ex-servicemen .................................................................... 83
46. Reservation of seat or posts for women............................................................................ 84
47. Reservation in Judiciary ................................................................................................... 84
48. Basis of classification for discrimination not to be arbitrary ........................................... 85
49. Reasonable classification ................................................................................................. 85
50. Reservation for children of bank employees .................................................................... 86
51. Appointment, infraction of rules ...................................................................................... 86
52. Appointment without rules ............................................................................................... 86
53. Appointment in violation of select list ............................................................................. 86
54. Appointment for political objects ..................................................................................... 87
55. Whole thing completed in haste in one day in absence of
Secretary ......................................................................................................................... 87
56. Consideration of extraneous matters ................................................................................ 87
57. Membership of political party in power no disqualification for appointment .................. 87
58. Political convictions or affiliations no bar for public
employment ..................................................................................................................... 87
59. Termination on Police report............................................................................................ 88
60. Citizen be heard before he is debarred from appointment ............................................... 88
61. Ad-hoc appointment, what it is ........................................................................................ 88
62. Ad-hoc appointment, when can be made ......................................................................... 88
63. Ad-hoc appointment/promotion, All eligible persons be considered................................ 89
64. Ad-hoc appointment, does not vest right to hold post ...................................................... 90
65. Ad-hoc appointment, does not confer any right to claim such post or seniority on that
account ............................................................................................................................ 90
66. Ad-hoc appointment, place of promotees ......................................................................... 90
67. Ad-hoc appointment or promotion ................................................................................... 90
68. Ad-hoc appointment, ad-hocist has no right either of seniority or otherwise on the post . 92
69. Officiating and substantive, meaning of ........................................................................... 92
70. Appointment - Part time ................................................................................................... 93
71. Appointment, excluded post ............................................................................................. 93
72. Appointment, void............................................................................................................ 93
73. Appointment until further orders ...................................................................................... 93
74. Substantive appointment to a permanent post .................................................................. 93
75. Permanent appointment and appointment on probation distinction between.................... 94
76. Post likely to continue ...................................................................................................... 94
77. Officiating or temporary, difference in ............................................................................ 94
60 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
all appointments in respect of Central Civil Services and posts Class I, under the
following administrations:—.
— Arunachal Pradesh - To the Administrator of Arunachal Pradesh.
— Dadra and Nagar Haveli - To the Administrator of Dadra & Nagar Haveli.
— Delhi - To the Lieutenant Governor of Delhi.
— Goa, Daman & Diu - To the Administrator of Goa, Daman & Diu.
— Mizoram - To the Administrator of Mizoram.
Provided that no appointment to the post of Chief Secretary or Finance
Secretary or Inspector-General of Police or Development Commissioner of any other
post which carries an ultimate salary of Rupees Two Thousand per mensem or more
shall be made except with the previous approval of the Central Government.
6. Appointment or Employment — “Appointment” and “employment”
connote two different conceptions. The word “employment” covers a much larger field
in matter of conditions of service, the right to promotion, etc. then the word
“appointment”. S.K. Das Gupta v. O.N.G.C., AIR 1970 Guj 149; General Manager, S.
Rly v. Rangachari, 1961(2) SCJ 424: AIR 1962 SC 36: 1962(2) SCR 586: 1970(2) LLJ
289; Lalit Mohan Deb v. Union of India, 1969 Lab IC 1580; M.G. Sharan v. State of
Bihar, AIR 1970 Patna 25.
7. Appointment and Recruitment — (i) The term “recruitment” and
“appointment” are not synonymous and connote different meaning. Basant Lal
Malhotra v. State of Punjab, AIR 1969 Pun 178: 1968 SLR 883; Gurdev Singh Gill v.
State of Punjab, 1968 SLR 538.
(ii) The concept of recruitment is quite different from the concept of
appointment. Man Mohan Kaushib v. State of Rajasthan, 1971 Lab IC 338: AIR 1971
Raj 60: 1971(2) SLR 88.
8. Appointment, Rules for — Government has the power of making
appointments. Rules are framed by the Government for regulating the manner in which
such appointments are to be made. The Government is not bound to frame the rules.
Failure of the Government to frame rules does not take away the power of the
Government to make appointments. Maria T.S. da P. Moraise Almeida v. Union of
India, 1982(1) SLJ 136. See also Nelam Kandam Bhaskaran v. Union of India, 1988(4)
SLR 783 (CAT Delhi); Bal Krishan Sharma v. H.P. University, 1998(1) SLR 287
HP (DB).
Appointments to any public post must be absolutely transparent and fair and
must be in accordance with the prescribed procedure. This is the reason why this Court
has been indicating that even ad-hoc appointments should not be encouraged as far as
possible and should be adhered to only when public exigencies require and appointment
in accordance with the prescribed procedure would take a fairly long time and non-
filling up of the posts would be against the public interest. Dilip Kumar Tripathy v.
State of Orissa, AIR 1997 SC 440: 1996(10) SCC 373: 1996(3) SCJ 239: 1996(3) SLJ
112: 1996(5) SLR 640: 1997(75) FLR 306.
62 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
Article 229. Officers and servants and the expenses of High Courts — (1)
Appointments of officers and servants of a High Court shall be made by the Chief
Justice of the Court or such other judge or officer of the court as he may direct:.
Provided that the Governor of the State may by rule require that in such cases
as may be specified in the rule no person not already attached to the Court shall be
appointed to any office connected with the Court save after consultation with the State
Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State,
the conditions of service of officers and servants of a High Court shall be such as may
be prescribed by rules made by the Chief Justice of the Court or by some other Judge or
officer of the Court authorised by the Chief Justice to make rules for the purpose;
Provided that the rules made under this clause shall, so far as they relate to
salaries, allowances, leave or pensions, require the approval of the Governor of
the State.
Subordinate Courts
Article 233. Appointment of District Judges — (1) Appointments of persons to
be, and the posting and promotion of, District Judges in any State shall be made by the
Governor of the State in consultation with the High Court exercising jurisdiction in
relation to such State.
(2) A person not already in the service of the Union or of the State shall only
be eligible to be appointed a District Judge if he has been for not less than seven years
an advocate or a pleader and is recommended by the High Court for appointment.
Article 234. Recruitment of persons other than District Judges to the Judicial
Service — Appointments of persons other than District Judges to the judicial service of
a State shall be made by the Governor of the State in accordance with rules made by
him in that behalf after consultation with the State Public Service Commission and with
the High Court exercising jurisdiction in relation to such State.
Article 235. Control over subordinate Courts — The control over district
courts and courts subordinate thereto including the posting and promotion of, and the
grant of leave to, persons belonging to the judicial service of a State and holding any
post inferior to the post of district judge shall be vested in the High Court, but nothing
in this Article shall be construed as taking away from any such person any right of
appeal which he may have under the law regulating the conditions of his service or as
authorising the High Court to deal with him otherwise than in accordance with the
conditions of his service prescribed under such law.
64 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
It is now settled beyond dispute that control envisaged in Article 235 includes
both disciplinary as also judicial — Rohas Behari Rajguru v. State of Orissa, 1981(3)
SLR 78.
Scope of Article 235 based on decisions of Supreme Court has been
summarised in P. Kumara Menon v. State of Kerala, 1982(1) SLR 104: 1982(1) SLJ 91.
11. Appointments of Officers and Servants of a High Court — The
unequivocal purpose and obvious intention of the framers of Constitution in enacting
Article 229 is that in the matter of appointments of officers and servants of a High
Court it is the Chief Justice or his nominee who is to be supreme authority and there
can be no interference by the executive except to the limited extent that is provided in
the Article. M. Gurumorrthy v. Accountant-General, Assam, 1971(1) SCWR 817: AIR
1971 SC 1850: 1971 Supp SCR 420: 1971(2) SCC 137: 1971(2) SLR 434. See also
Subhash Sharma v. Union of India, AIR 1990 SC 631: 1990(2) Supp SCR 433: 1991(1)
SCC Supp 573: 1990(4) JT 245: 1990(6) SLR (SC) 36.
12. “Control” of High Court — The word “control” used in Article 235 read
with Articles 233 and 234 would indicate that although the Appointing Authority of the
District Judge and officers other than District Judges is the Governor of the State, the
words “control over district courts and courts subordinate thereto”, which are words of
wide connotation, vest in the High Court other facets of service of those officers,
namely, their confirmation on completion of the period of probation, their postings,
transfers and disciplinary matters including power to recommend major punishments.
Thus, the “control” vested in the High Court is complete control subject only to the
powers of the Governor in the matter of appointment, initial posting and promotion to
the posts of District Judges. For imposing major punishment, including the punishment
of dismissal, removal or reduction in rank, the High Court can, in exercise of its powers
under Article 235 of the Constitution, hold disciplinary proceedings and recommend the
punishment to be imposed on the delinquent to the Governor who alone would be
competent to impose such punishment having regard to the provisions of Articles 233
and 234. Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC
739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174:
2000(1) LLN 39.
13. Powers and role of the High Court — The Indian Constitution provides
for an independent judiciary in every State by making a provisions for a High Court
being constituted for each State. The constitution has conferred very wide powers and
extensive jurisdiction on each High Court, including the power of superintendence over
all the courts and tribunals in the territory over which it has jurisdiction. Undoubtedly,
one of the most important wings of the judiciary comprises of the subordinate courts as
it is in these courts that the judiciary comes in close contact with the people. In order to
secure the independence of the subordinate judiciary from the Executive, Articles 233
to 237 have been placed in the Constitution. Article 233 deals with the appointment of
District Judges and provides that appointments, posting and promotions of District
Judges in any State shall be made by the Governor in consultation with the High Court,
exercising jurisdiction in relation to such State. The word “District Judge” has been
defined in Article 236(a). The expression “judicial service” has been defined in clause
R.8-9] APPOINTING AUTHORITY 65
(b) of Article 236. Article 237 gives power to the Governor to apply, by public
Notification, the provisions of this Chapter and the Rules made there under to any class
or classes of Magistrates. Once such a Notification is issued, the provisions of Articles
234, 235 and 236 will become applicable to those magistrates and they would become
members of the “judicial service” under the control of the High Court. In order to
ensure their independence, the control over the subordinate courts has been vested in
the High Court under Article 235. From the scheme of the Constitution, it will be seen
that though the officers of subordinate judiciary are basically and essentially
Government Servants, their whole service is placed under the control of the High Court
and the Governor cannot make any appointment or take any disciplinary action
including action for removal or compulsory retirement unless the High Court is
“CONSULTED” as required by the constitutional impact of both the Articles 233 and
234 and the “control” of the High Court indicated in Article 235. Madan Mohan
Choudhary v. State of Bihar, AIR 1999 SC 1018: 1999(3) SCC 396: 1999(1) SLR 718:
1999(2) LLJ 229: 1999(1) SCJ 449: 1999(2) LLN 4: 1999(81) FLR 712: 2000(1) SLJ
87.
14. Disciplinary powers of High Court — The High Court are vested with the
disciplinary control as well as administrative control over the Members of the Judicial
Service exclusively, but that does not mean that they can also pass orders of dismissal,
removal, reduction in rank or termination from service while exercising administrative
and disciplinary control over the Members of Judicial Service. Undoubtedly, the High
Courts alone are entitled to initiate, to hold enquiry and to take a decision in respect of
dismissal, removal, reduction in rank or termination from service, but the formal order
to give effect to such a decision has to be passed only by the State Governor on the
recommendation of the High Court. It is well settled again by a catena of decisions of
Supreme Court that the recommendation of the High Court is binding on the State
Government/Governor. Therefore while the High Court retains the power of
disciplinary control over the subordinate judiciary, including the power to initiate
disciplinary proceedings, suspend them pending enquiries and impose punishment on
them but when it comes to the question of dismissal, removal, reduction in rank or
termination of the services of the judicial officer, on any count whatsoever, the High
Court becomes only the recommending authority and cannot itself pass such an order.
Registrar (Administration), High Court of Orissa v. Sisir Kanta Satapathy, AIR 1999
SC 3265: 1999(7) SCC 725: 1999 Lab IC 3243: 1999(4) LLN 1202: 1999(83) FLR 427:
2000(96) FJR 363: 1999(5) SLR 191: 2000(1) SLJ 226 relying upon Shyam Lal v. State
of U.P., (1955) 1 SCR 26 and High Court of Judicature for Rajasthan v. Ramesh Chand
Paliwal , (1998) 3 SCC 72; Therefore an order terminating the service of a judicial
officer should be treated as a recommendation to Governor. T. Lakshmi Narsimha Chari
v. High Court of A.P., 1996 (5) SCC 90.
make such entries as have potential for shaping the future career of a subordinate
officer casts an obligation on the High Courts to keep a watch and vigil over the
performance of the members of subordinate judiciary. An assessment of quality and
quantity of performance and progress of the judicial officers should be an ongoing
process continued round the year and then to make a record in an objective manner of
the impressions formulated by such assessment. An annual entry is not an instrument to
be wielded like a teachers cane or to be cracked like a whip. The High Court has to act
and guide the subordinate officers like a guardian or elder in the judicial family. The
entry in the confidential rolls should not be reflection of personal whims, fancies or
prejudices, likes or dislikes of a superior. The entry must reflect the result of an
objective assessment coupled with an effort at guiding the judicial officer to secure an
improvement in his performance where need be; to admonish him with the object of
removing for future, the shortcoming found; and expressing an appreciation with an
idea of toning up and maintaining the imitable qualities by affectionately patting on the
back of meritorious and deserving. An entry consisting of a few words, or a sentence or
two, is supposed to reflect the sum total of the impressions formulated by the inspecting
judge who had the opportunity of forming those impressions in his mind by having an
opportunity of watching the judicial officer round the period under review. In the very
nature of things, the process is complex and the formulation of impressions is a result
of multiple factors simultaneously playing in the mind. The perceptions may differ. In
the very nature of things there is a difficulty nearing an impossibility in subjecting the
entries in confidential rolls to judicial review. Entries either way have serious
implications on the service career. Hence the need for fairness, justness and objectivity
in performing the inspections and making the entries in the confidential rolls. Rules -
where they are, else the executive instructions, require that entries in confidential
records are made within a specified time soon following the end of the period under
review, generally within three months from the end of the year. Delay in carrying out
inspections or making entries frustrates the very purpose sought to be achieved. The
mental impressions may fade away or get embellished, not to be restored. Events of
succeeding year may cast their shadow on assessment of previous years. Recording of
entries for more than one period in one go must be avoided as it is pregnant with the
risk of causing such harm as may never be remedied or granting undeserved benefits.
Thus the need of vigilantly carrying out the annual inspections at regular intervals and
making timely entries in the service records followed by prompt communications to the
judicial officers so as to afford them a right of representation in the event of the entry
being adverse, emphasised. Bishwanath Prasad Singh v. State of Bihar, 2001(2) SCC
305: 2001(1) SLT 183: 2001(1) SCJ 343.
17. Consultation with High Court — The word “consult” in its ordinary
meaning means “to ask advice” or “to take counsel”. The Governor is thus a “consulter”
and the High Court is the “consultee” which is treated as an expert body in all matters
of service including appointments, disciplinary action, compulsory retirement etc.
relating to State Judicial Services. Since the Governor cannot act on his own unless he
has consulted the High Court, the Constitution has conferred upon the High Court a
sacred and noble duty to give the best of advice or opinion to the Governor; an advice
tendered after due deliberation and after taking into consideration all the relevant
material and record relating to the problem on which consultation is made or advice is
sought by the Governor. It is, therefore, essentially a matter of trust and confidence
between the Governor and the High Court. The High Court cannot act arbitrarily in
giving its opinion to the Governor or else it will be a betrayal of that trust. If the advice
is not supportable by any material on record and is arbitrary in character it may not
have any binding value. Madan Mohan Choudhary v. State of Bihar, AIR 1999 SC
1018: 1999(3) SCC 396: 1999(1) SLR 718: 1999(2) LLJ 229: 1999(1) SCJ 449: 1999(2)
LLN 4: 1999(81) FLR 712: 2000(1) SLJ 87.
(ii) A candidate for direct recruitment from the bar does not become eligible for
appointment as District Judge without the recommendations of the High Court. [Article
233(2) of the Constitution].
(iii) In A. Pandurangam Rao v. State of A.P., AIR 1975 SC 1922: 1976(1) SCR
620: 1975(4) SCC 709: 1975 Lab IC 1452: 1975(2) SLR 582: 1976 SLJ 3, it was held
that Government was not bound to accept all the recommendations but could tell the
High Court its reasons for not accepting the High Court”s recommendations in regard to
certain persons. Even if the High Court did not agree, the final authority was the
Government in the matter of appointment and for good reasons it could reject the High
Court”s recommendations. In Mani Subrat Jain v. State of Haryana, 1977(1) SCJ 455:
AIR 1977 SC 876: 1977(2) SCR 626: 1977(2) SCC 148: 1977 Lab IC 533: 1977 SLJ
144: 1977(1) SLR 272, it has been held that if the names are recommended by High
Court, it is not obligatory on the Governor to accept the recommendations.
(iv) District Judge includes Additional District Judge and Additional
Sessions Judge — Under Article 233 appointment as well as promotion of persons to
be District Judge is a matter for the Governor in consultation with the High Court and
the expression “District Judge” include an additional District Judge and an additional
Sessions Judge. District Judges may be directly appointed or may be promoted from the
subordinate ranks of the judiciary. The Article is intended to take care of both. State of
Assam v. Kuseswar Saikia, 1970(1) SCWR 275: AIR 1970 SC 1616: 1970(2) SCR 928:
1969(3) SCC 505: 1970 Lab IC 1336: 1969 SLR 883; see also Chandra Mohan v. State
of U.P., 1967(2) SCJ 717: 1967(1) SCWR 153: AIR 1966 SC 1987: 1967(1) SCR 77:
1967(1) LLJ 412; Prem Nath v. State of Rajasthan, 1967(II) SCWR 543: AIR 1967 SC
1599: 1967(2) SCR 186: 1967 CrLJ 1569: 1967 SLR 872.
(v) Appointment to the post of District Judge must be made by selection of the
most meritorious officer upon an appraisal of the comparative merit of eligible
Subordinate Judge. The principle of seniority-cum-fitness would be a valid principle.
Hari Datta Kainthala v. State of H.P., 1974 SLJ 525: 1974(1) SLR 208 (SC) (FB).
Supreme Court on appeal in above case held that if there was no rule and the High
Court proceeded to adopt merit-cum-seniority or seniority-cum-fitness as a criterion for
recommending promotions from the subordinate judges to the post of District Judge,
neither of which appears to violate either Article 233 or Article 16 or any other
constitutional mandate or the statutory rule, it would be futile to proceed to examine
what ought to be or possible criterion should really govern the decision for
recommending persons from subordinate judicial service for promotion to the District
Judge. Hari Datta Kainthala v. State of H.P., 1974 SLJ 525: 1974(1) SLR 208
(SC) (FB).
(vi) Promotee Officer: Reversion — Under Article 235 of the Constitution,
the High Court is competent to revert a person promoted on officiating basis as District
Judge by the State Government, to his substantive post of Additional District &
Sessions Judge. Mahendra Prasad Sinha v. High Court, Patna, 1983(1) SLR 778 Pat.
(vii) Appointment of Full Court — In the Kerala High Court, a Committee of
senior most three Judges was constituted to prepare a list of suitable persons. Opinion
of the Committee was placed before the Full Court and there was joint deliberation by
R.8-9] APPOINTING AUTHORITY 69
the Full Court. It was held that there was no abdication by the Full Court. Mary Teresa
Dias v. Chief Justice, 1986(1) SLR 380 Ker (DB).
(viii) High Court”s Recommendation — It is only the High Court which can
make a recommendation whether a particular officer of the Judiciary is competent and
fit to be promoted as Judge, City Civil Court. If the State Government rejects the
recommendation without mature deliberation, article 233 and 235 of the constitution are
attracted. N.J Mankad v. State, 1985(2) SLR 306 Guj.
(ix) Member of High Court Staff — Article 233(2) of the Constitution lays
down qualifications for appointment as District Judges. The candidates must be
practising advocates. A member of the High Court staff is not eligible for the post. S.G.
Deshpande v. State of Maharashtra, 1985(3) SLR 264 Bom.
(x) Promotion of Subordinate Judges — For promoting Subordinate Judges
to the post of District and Sessions Judge, Grade II rules were silent as to the method to
be adopted. The High Court adopted the criterion of the seniority-cum-fitness. It was
held that this was proper. T.H.B. Chalapathi v. High Court, A.P., 1986(2) SLR 218,
227, 228 para 11 ( AP) (DB)
19. Appointments to Higher Judicial Service, Qualifications for — Article
233(2) laid down only the minimum qualifications and it was open to the rule making
authority to prescribe more stringent qualifications for the recruitment of the persons to
the Higher Judicial Service only. Daulat Raj Singhvi v. State of Rajasthan, 1970 Raj
LW 214; Pandurang Rao v. Andhra Pradesh Public Service Commission, AIR 1963 SC
268: 1963(1) SCR 707; Muni Lal Garg v. State of Rajasthan, AIR 1970 Raj 164.
See also Surinder Mohan Sharma v. State of Haryana, 1988(5) SLR 94 P&H;
S.N. Singh v. High Court, Allahabad, 1985(2) SLR 819 (SC): 1984(2) SCJ 287; Orissa
Judicial Services Association v. State of Orissa, AIR 1990 SC 726: 1990(3) Supp SCR
348: 1992(1) SCC 187: 1990(4) JT 726: 1991(2) ATR 684: 1992(19) ATC 229: 1991(1)
SLR 542: 1991 Lab IC 522; High Court of Judicature at Allahabad v. Amod Kumar
Srivastava, 1993(3) SLR 308 All (FB); K.Arumgam v. State of Tamil Nadu, 1998(1)
SLR 260 Mad (DB).
20. Appointment or Dismissal or Removal of Persons in Judicial Service is
an Executive Function of Governor — Appointment or dismissal or removal of
persons belonging to the Judicial Service of the State is not a personal functions but is
an executive function of the Governor exercised in accordance with the rules in that
behalf under the Constitution. Shamsher Singh v. State of Punjab, 1974(2) SLR 701:
AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831. It will be in the best interest
of a high and healthy tradition for the Governor to ordinarily accept the
recommendations of a High Court in a disciplinary matter concerning judicial officers
Baldev Raj Guliani v. P&H High Court, 1976 SLJ 601: 1976(2) SLR 758: AIR 1976 SC
2490: 1977(1) SCR 524: 1976(4) SCC 201; State of Haryana v. Inder Prakash, AIR
1976 SC 1841: 1976 Supp SCR 603: 1976(2) SCC 977: 1976(2) SLR 223: 1976 SLJ
497; Chief Justice, A.P., High Court v. L.V.A. Dikshitulu, AIR 1979 SC 193: 1979(2)
SCC 34: 1979(1) SLR 1; P. Kumara Menon v. State of Kerala 1982(1) SLR 104:
1982(1) SLJ 91.
70 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
See also State of U.P. v. Rafiquiddin, 1988(1) SCR 794: AIR 1988 SC 162:
1987 Supp SCC 401: 1987(4) JT 251: 1988(1) SLR 491: 1988 Lab IC 344: 1987(5)
ATC 257: 1988 SCC (Lab) 183: 1988(2) SCJ 170.
21. Removal of judicial officer from service by High Court— Order of
removal passed by the High Court itself and not in the name of Governor. Held that
though the recommendation of the High Court for removal from service is binding on
the Governor, the High Court cannot by itself pass the order of removal from service. T.
Lakshmi Narasimha Chari v. High Court of Andhra Pradesh, AIR 1996 SC 2067:
1996(5) SCC 90: 1996(73) FLR 1618: 1996(2) UJ 300: 1996 SCC(L&S) 1133: 1996(2)
SCJ 524: 1996(2) SLJ 40: 1996(4) SLR 1: 1996(2) LLN 479.
22. Appointment of Public Prosecutors, Government Pleaders and Law
Officers — (i) The appointment of Public Prosecutor is an executive or administrative
act of the Government but if it contravenes the law, Courts can intervene. The
appointment has to be made in accordance with the rule and the procedure prescribed.
A. Mohambaram v. M.A. Jayavelu, AIR 1970 Mad 63.
(ii) Appointment by selection or by a process otherwise than calling for
applications does not necessarily offend Article 16. Baby George v. State of Kerala,
1974 SLJ 548; Sudhansu Sekhar Misra v. State, 1976(1) SLR 477: 1976 Lab IC 821.
(iii) The making of an application by an Advocate for appointment of Law
Officers whether in response to an advertisement or notice or otherwise would amount
to soliciting work and would be highly unprofessional and unethical. Any advocate who
applies for appointment would be committing professional misconduct. State of U.P. v.
Bholanath Srivastava, 1972 SLR 477: 1972 ALJ 457.
23. Articles 14, 15 and 16 Form a Part of Constitutional Guarantee of
Equality in Matters Relating to Employment or Appointment under the State —
Article 14, 15 and 16 of the Constitution provide:—.
Article 14. Equality before law — The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.
Article 15. Prohibition of discrimination on Grounds of Religion, Race, Caste,
Sex or Place of Birth. — (1) The State shall not discriminate against any citizen on
ground only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race caste, sex, place of birth
or any of them, be subject to any disability, liability restrictions or condition with
regard to—.
(a) access to shops, public restaurants, hotels and places of public
entertainment; or.
(b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of general public.
(3) Nothing in this Article shall prevent the State from making any special
provision for women and children.
R.8-9] APPOINTING AUTHORITY 71
(4) Nothing in this Article or in Clause (2) of Article 29 shall prevent the State
from making any special provisions for the advancement of any socially and
educationally backward classes of citizens or for the Schedule Castes and the Scheduled
Tribes].
Article 16. Equality of opportunity in matter of public employment — (1)
There shall be equality of opportunity for all citizens in matters relating to employment
or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place
of birth, residence or any of them, be ineligible for, or discriminated against in respect
of, any employment or office under the State.
(3) Nothing in this Article shall prevent Parliament from making any law
prescribing in regard to a class or classes of employment or appointment to an office
under the Government of or any local or that authority within a state or Union Territory,
any requirement as to residence within that State or Union territory] prior to such
employment or appointment.
(4) Nothing in this Article shall prevent the State from making any provision
for the reservation of appointments or posts in favour of any backward class of citizens
which, in the opinion of the State, is not adequately represented in the services under
the State.
(4-A) Nothing in this Article shall prevent the State from making any provision
for reservation in matters of promotion to any class or classes of posts in the service
under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in
the opinion of the State, are not adequately represented in the service under the State].
(4B) Nothing in this Article shall prevent the State from considering any
unfilled vacancies of a year which are reserved for being filled up in that year in
accordance with any provision for reservation made under clause (4) or clause (4A) as a
separate class of vacancies to be filled up in any succeeding year or years and such
class of vacancies shall not be considered together with the vacancies of the year in
which they are being filled up for determining the ceiling of fifty per cent, reservation
on total number of vacancies of that year.].
(5) Nothing in this Article shall affect the operation of any law which provides
that the incumbent of an office in connection with the affairs of any religious or
denominational institution or any member of the governing body thereof shall be a
person professing a particular religion or belonging to a particular denomination.
The right to equality is guaranteed by Article 14 and 16 of our Constitution.
Article 14 is an injunction to both the legislative and the executive organs of the State
and other subordinate authorities not to deny to any person equality before the law or
equal protection to the laws. Sub-Article (1) of Article 16 guarantees to every citizen
equality of opportunity in matters of Public employment. The equality of opportunity in
the matters of services takes within its fold all stages of service from initial
appointment to its termination including promotion but it does not prohibit the
prescription of reasonable rules for selection and promotion, applicable to all members
72 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
Concept of equality has an inherent limitation arising from very nature of the
guarantee under the Constitution and those who are similarly circumstanced are entitled
to equal treatment. If there is a rational classification consistent with the purpose for
which such classification was made, equality is not violated. Article 16 of the
Constitution does not bar a reasonable classification of employees or reasonable tests
for selection. Equality of opportunity of employment means equality as between
members of the same class of employees and not equality between members of separate
independent class. Union of India v. IM Havildar/Cerl SC Bagari (No. 664950), AIR
1999 SC 1412: 1999 JT(3) 124: 1999 Lab IC 1561: 1999(2) SLR 775 (SC).
25. Reservation and Equality — V.R. Krishna Iyer, J. speaking for the
Supreme Court in Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India,
1980(3) SLR 645 said, “Centuries of calculated oppression and submission admission
reduced a considerable section of our community to a life of serfdom. It would be well
neigh impossible to raise their standards if the doctrine of equal opportunity was strictly
enforced in their case. They would not have any chance if they were made to enter the
open field of competition without adventitious aids till such time when they could stand
on their own legs.” Reservation in promotions was upheld in General Manager,
Southern Railway v. Rangachari, 1961(2) SCJ 424: 1962(2) SCR 586: AIR 1962 SC 36:
1970(2) LLJ 289; see also State of Kerala v. N.M. Thomas, AIR 1976 SC 490: 1976(1)
SCR 906: 1976(2) SCC 310: 1976 Lab IC 395: 1976(2) SLR 805.
74 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
these qualifications. Ramesh Prasad Singh v. State of Bihar, AIR 1978 SC 327: 1978(1)
SCR 787: 1978(1) SCC 37: 1978(1) SLR 268: 1978 SLJ 1: 1978 Lab IC 173.
(iii) Eligibility for being appointed depends on the question where the
candidate possesses the minimum qualification prescribed for the post. If in addition to
the minimum qualification prescribed for the post, the candidate possesses any further
qualification, he will not be ineligible for the post. Karnataka Public Service
Commission v. N.C. Hugar, 1981(1) SLR 469 (FB).
(iv) Academic merit cannot be judged to be the sole test for appointment. M.A.
Jauhri v. State of J&K, 1971(1) SLR 489.
See also Dhankaur Hooda v. State of Haryana, 1989(2) SLR 501 P&H;
S.S.R.N. Sarma v. Registrar (Admn), High Court of A.P., Hyderabad, 1997(4) SLR 642
(AP) (FB); Sudeesh T. Balaraman v. State, 1997(4) SLR 431 Ker.
30. Relaxing or Altering Qualifications — (i) In the absence of any
obligations, statutory or otherwise it is open for the Government to alter the
qualifications already specified, and for the Public Service Commission to select
candidates on the basis of altered qualifications. Ahmad Thonnon Thodi v. State of
Kerala, 1970 SLR 34.
(ii) It is true that no relaxation in qualifications can be made when an
advertisement has duly been issued inviting applications and persons possessing the
qualifications advertised as prescribed are available and have submitted their
applications. If a relaxation has to be made, there is a duty cast to re-advertise the post.
Where the advertisement itself contained a relaxation clause, relaxation was upheld as
there was no statute or regulation having the force of law by which qualifications were
prescribed for the post and it was the exclusive power of Administration to prescribed
the qualifications. Swaran Lata v. Union of India, 1979(2) SCR 953: 1979 SLJ 170:
1979(1) SLR 710 (SC).
(iii) It is open to the Government to change conditions on which applications
were invited in the advertisement and offer appointments on new conditions. O.P.
Yuggal v. Secretary to Government of Punjab, 1972 SLR 444; H.C. Widhani v. Union
of India, 1969 SLR 812. The dictation of Government to the authorities concerned for
giving preference to persons having undergone vasectomy operation was violative of
Article 16. Abhai Kumar Singh v. Director School Education, 1979(2) SLR 97.
(iv) Advertisement calling applications for posts mentioned qualifications and
other requirements. No mention in advertisement that the qualifications and conditions
can be relaxed. Selection of candidates in relaxation of qualifications and other
requirements struck down as the selection was detriment of constitutional right of other
citizens. M.S.E.B. Engineer”s Association v. Maharashtra State Electricity Board, AIR
1968 Bombay 65: 1968 SLR 273; Atam Prakash Mohan v. Kurukshetra University,
1970 SLR 16; Kuldip Chand v. Union of India, 1970 SLR 406; Kuldip Singh Gill v.
State of Punjab, 1972 SLR 706; Harnam Singh v. State of H.P., 1974(2) SLR 350;
Mohammed Maqbool Pandit v. Chairman, District Recruitment Board, 1981(1)
SLR 490.
76 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
(v) It is a well established law that qualifications for a particular post can be a
rational differentia within the meaning of Article 16. It is equally clear that when a
qualification has been prescribed for a post, that cannot be obliterated by posting those
who do not have that qualification as against those who have that qualification. Subhash
Chand Jain v. Delhi Electric Supply Undertaking, AIR 1981 SC 75: 1979(3) SCC 786:
1980 Lab IC 1189: 1981(3) SLR 212: 1979(1) SLR 306: 1979 SCC (Lab) 345: 1981(1)
SCJ 305.
(vi) But there can be no relaxation of the basic or fundamental rules of
recruitment. Suraj Parkash Gupta v. State of Jammu & Kashmir, AIR 2000 SC 2386:
2000(7) SCC 561: 2000(5) JT 413: 2000 Lab IC 2588: 2000(4) SLR 486.
31. No Legal Duty to fill-up all vacancies advertised — Advertisement was
published to hold an examination for recruitment of candidates for 15 vacancies. State
Government made seven appointments in serial order of the list according to merit of
those whose secured not less than 55% of marks. Held, there is no legal duty on the
State to fill up all the 15 posts and those who got less than 55% have no right to claim
that selections be made of all those who obtained less than minimum fixed by
Government. State of Haryana v. Subhash Chander Marwaha, 1973(1) SCWR 947:
AIR 1973 SC 2216: 1974(1) SCR 165: 1974(3) SCC 220: 1973(2) SLR 137: 1973 SLJ
795; Balak Ram v. State of H.P., 1976 Lab IC 1052: 1976(1) SLR 520; Davinder Singh
v. State of Punjab, 1982(2) SLR 249; See also Arvind Kumar v. State of U.P., 1988(1)
SLR 701 (All); Arun Tewari v. Zila Mansavi Sikshak Sangh, AIR 1996 SC 2107:
1996(8) SCC 441: 1996(4) JT 738: 1996(4) AD(SC) 271: 1998(1) SLR 219 (SC); Jasbir
Singh v. State of Punjab, 1998(1) SLR 312 (P&H) (DB); Pushpa Sharma v. State of
Haryana, 1998(1) SLR 558 (P&H) (DB).
32. No Legal Duty to fill-up Vacancies and not allow Vacancies to be
accumulated — Even when there is a vacancy, the State is not bound to fill up such
vacancy nor is there any corresponding right vested in an eligible employee to demand
that such post be filled up. This is because the decision to fill up a vacancy or not vests
with the employer who for good reasons; be it administrative, economical or policy;
decide not to fill up such posts. This principle applies with all the more force in regard
to the creation of new vacancies like by encadrement of new posts; more so when such
encadrement or creation of new posts is statutory controlled. Tamil Nadu Administrative
Service Officers Association v. Union of India, AIR 2000 SC 1898: 2000 SC(5) 728:
2000(3) LLN 474: 2000(2) SLR 659 (SC); See also State of Haryana v. Subhash
Chandra Marwaha, 1974(3) SCC 220: 1973(2) SLR 137 (SC).
It is neither for the petitioner nor for the Court to assess the exigencies of
administration and it is primarily for those who are in charge of the administration to
decide whether it is in the interest of administration to allow particular vacancies to be
accumulated for a particular period. G.C. Dhiman v. State of H.P., 1979(1) SLR 522.
33. Mere Selection Would Not Give Right to Claim Appointment — A mere
selection by the Selection Committee or Service Selection Board would give no
indefeasible right to the selected individual to claim appointment to the post in the
absence of any order to the same effect by the appointing authority itself. State of
Punjab v. Saroj Devi, 1981(1) SLR 49; Davinder Singh v. State of Punjab, 1982(2)
R.8-9] APPOINTING AUTHORITY 77
SLR 249. See also Karnataka State Road Transport Corporation v. K.C.
Mudalgiryappa, 1988(1) SLR 106 (Kar).
Mere empanelment or inclusion of one”s name in the selection list does not
give him a right to appointment. Govt. of Orissa through Secretary, Commerce &
Transport Deptt., Bhubaneswar v. Haraparsad Das, 1998(1) SLJ 431.
But a duly selected person for being appointed and illegally kept out of
employment on account of untenable decision on the part of the employer, can not be
denied the said appointment on the ground that the panel has expired in the meantime.
Purushottam v. Chiarman, M.S.E.B., 1999(6) SCC 49: 1999(9) JT 334: 2001(1) SLR
62 (SC).
34. Recruitment by Open Competition — The principle of recruitment by
open competition aims at ensuring equality of opportunity in the matter of employment
and obtaining the service of the most meritorious candidates. State of Mysore v. S.R.
Jayaram, 1968(2) SCJ 38: AIR 1968 SC 346: 1968(1) SCR 349: 1968 Lab IC 357.
In one case the relevant rule dealing with recruitment was as follows:.
“Rule 4. Method of recruitment.— Recruitment in the service shall be by the
following methods:.
(a) By competitive examination held in accordance with part II of the rules.
(b) By promotion of class II officers of the signal engineering department. Not
more than 40 percent of the vacancies shall be filled by departmental promotion. This
percentage is likely to be varied from time to time, if found necessary.
Note. If the quota of 40 percent reserved for class II officers for promotion to
class I is not fully utilized, the remaining vacancies shall be filled by direct recruitment
under clause (a).
(c) By occasional admission of other qualified persons appointed by the
Government on the recommendation of the commission.
On interpretation of above rules it was held that no doubt the second sentence
in clause (b) places a ceiling of 40 percent on the vacancies to be filled up by
departmental promotion. The note reinforces this mandate by providing that in case of
shortfall in the promotional quota of 40 percent, those vacancies remaining should be
allocated to direct recruits. That means, in a given year, the direct recruits can go
beyond 60 percent, if sufficient number of promotee officers are not available. It is a
different thing that it had never happened and the direct recruitment could not be made
in some years even to the full extent of 60 percent. But, that is what the rule provides.
However, the rule in so far as it operates against the promotee officers has been diluted
to a certain extent by reserving the power to vary the percentage allocated to promotees.
The variation, in our view, could be both downward and upward, depending upon the
exigencies of service and the march of events. Going by the plain language, the
variation could be either way. If the variation was intended only to curtail but not to
enhance the promotion quota of 40 percent, suitable language could have been
employed. That apart, the word “not more than” itself would have provided some
78 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
flexibility to the appointing authority to reduce the promotee quota in a given year for
good and relevant reasons. Hence, it is not appropriate and proper to limit the ambit of
variation to the reduction of percentage. If the last sentence in clause (b) is to be read
subject to the preceding sentence with the appended note, the very purpose for which
such power is reserved to the government will be lost. A reading of the rule so as to
confine the variation of percentage to impinge on the normal promotee quota but not
vice versa is clearly unwarranted either on the plain language of the provision or its
intendment. There is nothing which precluded the government of India to take a policy
decision that the percentage should be so varied so as to give the benefit to the
stagnating promotee officers. When once such policy decision is taken, the normal rule
that 40 percent is the maximum for departmental promotees would stand protanto
modified for the time being. Of course, such variation, either upward or downward
should be based on rational basis and relevant considerations. When once such test is
satisfied, there is no difficulty in giving effect to the variation of percentage so as to
operate in favour of promotee officers. See Indian Railway, Class II Officers Fedn. v.
Anil Kumar Sanghi, AIR 2002 SC 3314: 2002(8) SCC 98: 2002(7) JT 325: 2002 Lab IC
3266: 2002 AIR SCW 3853: 2002(4) All MR 869: 2002(6) SLR 473 (SC): 2003
SCC(L&S) 5: 2003(1) SLJ 85.
35. Appointment of any one who is more suitable — Rule reserving power to
the Government to appoint any one it considers more suitable to a particular post is
violative of Articles 14 & 16(1). State of Mysore v. S.R. Jayaram, 1968(2) SCJ 38: AIR
1968 SC 346: 1968(1) SCR 349: 1968 Lab IC 357.
38. Reservation of Posts for Backward Classes — (i) Clause (4) of Article 16
undoubtedly empowers the State to make reservations of appointments or posts in
favour of any backward class of citizens so as to give the class an adequate
representation in the services under State. Triloki Nath Tiku v. State of J&K, 1969(1)
SCJ 306: 1969(1) SCWR 489: AIR 1969 SC 1; State of Punjab v. Hiralal, 1971(2) SCJ
471: 1971(1) SCWR 46: 1971(2) SLR 98; Mohinder Kumar Sood v. H.P. Public Service
Commission, AIR 1982 HP 78: 1982(3) SLJ 313: 1982(2) SLR 344.
R.8-9] APPOINTING AUTHORITY 79
(ii) Order under Article 16(4) must be duly published. K.S. Nair v. Oil &
Natural Gas Commission, 1974(2) SLR 116.
(iii) Reservation can be made by executive order, legislation is not necessary.
Mangal Singh v. Punjab State, AIR 1968 Punjab 306.
(vi) Castes or groups are specified in relation to a given State of Union
Territory, which obviously means that such caste would include caste belonging to an
OBC group in relation to that State or Union Territory for which it is specified. The
matters that are to be taken into consideration for specifying a particular caste in a
particular group belonging to OBCs would depend on the nature and extent of
disadvantages and social hardships suffered by that caste or groups in that State.
However, it may not be so in another State to which a person belongs thereto goes by
migration. It may also be that a caste belonging to the same nomenclature is specified in
two states but the considerations on the basis of which they been specified may be
totally different. So the degree of disadvantages of various elements which constitute
the data for specification may also be entirely different. Thus, merely because a given
caste is specified in one State as belonging to OBCs does not necessarily mean that if
there be another group belonging to the same nomenclature in other State and a person
belonging to that group is entitled to the rights, privileges and benefits admissible to the
members of that caste. These aspects have to be borne in mind in interpreting the
provisions of the Constitution with reference to application of reservation to OBCs.
Municipal Corporation of Delhi. v. Veena, AIR 2001 SC 2749: 2001(6) JT 413: 2001(6)
SCC 571: 2001(3) SCJ 390.
39. Scheduled Castes & Scheduled Tribes, Meaning of — Article 366(24) -
“Scheduled Castes” means such castes, races or tribes or parts of or group within such
castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the
purposes of this Constitution.
Article 366(25) - “Scheduled Tribes” means such tribes or tribal communities
or parts of or groups within such tribes or tribal communities as are deemed under
Article 342 to be Scheduled Tribes for the purposes of this Constitution.
Scheduled Castes and Scheduled Tribes are not a caste within the ordinary
meaning of caste. No court can come to a finding that any caste or any tribe is a
Scheduled Caste or Schedule Tribes. Scheduled Caste is a caste as notified under
Article 341 and Scheduled Tribe is such tribe or part of tribe as notified under Article
342. The object of Articles 341 and 342 is to provide protection to the members of
Schedule Castes and Scheduled Tribes having regard to the economic and educational
backwardness from which they suffer. Bhaiyalal v. Hari Kishan Singh, 1966(2) SCJ 77:
1965(2) SCR 877: AIR 1965 SC 1577; State of Kerala v. Thomas, 1976(2) SCR 906:
AIR 1976 SC 409; Akhil Bhartiya Sashit Karamchari Sangh (Railway) v. Union of
India, 1980(3) SLR 645 (SC).
See also N.C. Lingam v. Government of India, 1985(3) SLR 682 AP (DB); G.
Nooka Rao Reddy v. G.M. South, Central Railway, 1989(3) SLR 488 (CAT Hyderabad).
40. Reservation of Posts for Scheduled Castes and Scheduled Tribes — (i)
There is no constitutional duty imposed on the Government to make a reservation for
80 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
Scheduled Castes and Scheduled Tribes either at the initial stage of recruitment or at
the stage of promotion. Article 16(4) is an enabling provision and confers a
discretionary power on the State to make a reservation of appointments in favour of
backwards class of citizens which in its opinion, is not adequately represented in the
service of the State. C.A. Rajendran v. Union of India, 1968(1) SCR 721: 1968(2) SCJ
19: AIR 1968 SC 507: 1968 SLR 65; State of Punjab v. Hiralal, 1971(3) SCR 267:
1971(2) SCJ 471: AIR 1971 SC 1777: 1971(2) SLR 98; Dalip Singh v. Union of India,
1981(1) SLJ 470.
(ii) State can provide reservations not only for fresh appointments but also at
the promotion tier for selection posts. General Manager, Southern Railway v.
Rangachari, 1961(2) SCJ 424: AIR 1962 SC 36: 1962(2) SCR 586; State of Kerala v.
N.M. Thomas, 1976(1) SCR 906: AIR 1976 SC 409; S.S. Sharma v. Union of India,
1981(1) SCR 1184: 1981(1) SCC 397: AIR 1981 SC 588: 1981(2) SCJ 109: 1981 Lab
IC 131: 1981(1) SLJ 443: 1980(3) SLR 511.
(iii) State can provide reservation for selection posts. Akhil Bhartiya Soshit
Karamchari Sangh (Railway) v. Union of India, 1980(3) SLR 645 (SC).
(ii) If there is a reserved post in a particular service, the said post has to be
advertised so as to enable all eligible persons to apply and compete. State of Punjab v.
Captain Rattan Pal Sharma, 1982(1) SLR 364.
84 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
(iii) Where rules regarding reservation for Released Armed Forces contain no
definition of such personnel, persons released on compassionate grounds or on their
own cannot be excluded from the benefit of reservation. Ram Kumar v. Chairman,
Departmental Recruitment Committee, 1983(2) SLR 758 (P&H).
(iv) When making provision for reservation of posts for dependent children it is
permissible not to provide for reservation for dependents of deceased, ex-servicemen.
Dr. G.K. Diwan v. State of Punjab, 1985(2) SLR 403 P&H (DB).
(v) With reference to the Punjab Rules as to reservation for ex-servicemen,
namely the demobilised Indian Armed Forces etc. Rules 1972, Rule 2, a person who
joined the army as non-commissioned officer before 1962 but was appointed as a
commissioned officer on or after the 1 st November, 1962 (i.e. the date mentioned in the
rules), is also eligible for appointment against the reserve quota. The crucial date is also
the date of commissioning. Mohan Singh v. State of Punjab, 1983(1) SLR 454 (P&H).
(vi) Petitioner was considered not eligible for a post reserved for ex-servicemen
and the post was thrown open to the general category. Petitioner”s contention that he
should be considered at the post of the other candidates from the general category was
held to be unacceptable. Gursher Singh v. State of Punjab, 1984(1) SLR 730 (P&H)
following Jagmohan Singh v. State of Punjab, 1980(3) SLR 400.
(vii) Petitioner was senior in service to respondent. But respondent was
promoted as assistant and petitioner was deprived of it on the ground of lack of five
years experience as clerk. This requirement was, however, inserted by rules which had
no retrospective effect. Denial of promotion to the petitioner was held to be illegal.
Gurmit Singh v. Chief Secretary, Government of Punjab, 1983(1) SLR 141 P&H.
(viii) Rule 2(c)(ii) of the Ex-servicemen (Re-employment in Central & Civil
Services and Posts Rules, 1979 covers a person who (though in actual service) accepts
release within the next 6 months. G.K. Prajapati v. State Bank of India, 1985(2) SLR
690 Paras 8-9 (Guj).
46. Reservation of Seats or Posts for Women — Article 15(3) of Constitution
is so widely worded that it can successfully help women and in that process can make
men ineligible so long as this is done as “special provision for women”. The mere fact
that reservation of some posts is made for women does not mean that there is a
complete exclusion of men. Charan Singh v. Union of India, 1979(1) SLR 553: 1979
SLJ 263 see also Note 81. Disqualification on ground of sex.
But there could not be 100% reservation for women. S. Renuka v. State of A.P.,
2002(3) SLR 407 (SC): 2002(3) JT 246: 2002(3) SCC 641.
47. Reservation in Judiciary — Under Article 16(4) the State is enabled to
provide for reservations in Services. But so far as “Judicial Service” is concerned, such
reservation can be made by the Governor, in exercise of his rule making power only
after consultation with the High Court. The enactment of any statutory provision de
hors consultation with the High Court for regulating the recruitment to District
Judiciary and to Subordinate Judiciary will clearly fly in the face of the complete
scheme of recruitment and appointment to Subordinate Judiciary and the exclusive filed
R.8-9] APPOINTING AUTHORITY 85
earmarked in connection with such appointments by Articles 233 and 234. It is not as if
that the High Courts being constitutional functionaries may be oblivious of the need for
a scheme of reservation if necessary in appropriate cases by resorting to the enabling
provision under Article 16(4). The High Court can get consulted by the Governor for
framing appropriate rules regarding reservation for governing recruitment under
Articles 233 and 234. But so long as it is not done, the Legislature cannot, by an
indirect method, completely bypassing the High Court and exercising its legislative
power, circumvent and cut across the very scheme of recruitment and appointment to
District Judiciary as envisaged by the makers of the Constitution. Such an exercise,
apart from being totally forbidden by the Constitutional scheme, will also fall foul on
the concept relating to “separation of powers between the legislature, the executive and
the judiciary” as well as the fundamental concept of an “independent judiciary”. Both
these concepts are now elevated to the level of basic structure of the Constitution and
are the very heart of the Constitutional scheme. State of Bihar v. Bal Mukund Sah, AIR
2000 SC 1296: 2000(4) SCC 640: 2000(3) JT 221: 2000(2) SLR 448: 2000 Lab IC
1389: 2000(2) SCJ 599.
48. Basis of Classification for Discrimination Not to be Arbitrary — The
Supreme Court in Ajay Hasia v. Khalid Mujib Sahravardi, AIR 1981 SC 487: 1981(2)
SCR 79: 1981(1) SCC 722: 1981(1) LLJ 103: 1980(3) SLR 467: 1981(2) SLJ 651 and
Ramana Deyaram Shetty v. International Airport Authority of India, AIR 1979 SC
1628: 1979(3) SCR 1014: 1979(3) SCC 489: 1979(2) LLN 217: 1981(1) LLN 270 have
held that the State must show that the discriminatory action was not arbitrary. It must
now be taken to be well settled that what Article 14 strikes at is arbitrariness.
49. Reasonable Classification — The fundamental principle is that Article 14
forbids class legislation but permits reasonable classification for the purpose of
legislation which classification must satisfy the turtwin tests of classification being
found on an intelligible differentia which distinguishes persons or things that are
grouped together from those that are left out of the group and that differentia must have
a rational nexus to the object sought to be achieved by the statute in question. The State
would have to affirmatively satisfy the Court that the turtwin tests have been satisfied.
Case law discussed. D.S. Nakara v. Union of India, AIR 1983 SC 130: 1983(1) SCC
305: 1983(1) LLN 289: 1983(2) SLR 246: 1983 Lab IC 1 (SC): 1983(1) SLJ 131.
After a review of a large number of decision in Air India v. Nagresh Meerza,
AIR 1981 SC 1829: 1982(1) SCR 438: 1981(4) SCC 335: 1981(2) SLJ 349: 1981 Lab
IC 1313: 1982(1) SLR 117, it was held well established that Article 14 is certainly
attracted where equals are treated differently without any reasonable basis.
Artificial classification on the ground of sex in the matter of setting apart a
greater number of posts for being filled up by promotion by the male candidates without
any reasonable basis of such classification is unreasonable. Maya Mukherji Jha v. State
of West Bengal, 1982(2) SLR 405.
Where there is no nexus between the classification made and the object which
is sought to be achieved, such a classification is unreasonable. State of Maharashtra v.
Raj Kumar, 1982(2) SLJ 549: 1982 Lab IC 1597: AIR 1982 SC 1301: 1982(3) SCC 313.
86 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
52. Appointment Without Rules — Government can create posts, but must
make rules laying down qualifications. Balakrishna Pillai v. State of Kerala, 1983(3)
SLR 492 (Ker).
53. Appointment in Violation of Select List — Mere inclusion of name in a
select list as such confers no title to appointment. It is one thing to say that inclusion in
a list cannot or does not confer a right or title to appointment; but it is a far cry there
from to state that the appointing authority has the right to pick and choose the persons
from the ranked list as it pleases. The selected persons would be entitled to be
appointed in accordance with the rank list in their usual chance and turn for
appointment, if and when it arises from out of list as long as appointments are made
from the said list. P. Nalini v. Divisional Manager, 1978(1) SLR 623. The Department
is not expected to concern itself, whether the select list has become time barred. S.
Jeevadas v. State of Kerala, 1978(2) SLR 590.
R.8-9] APPOINTING AUTHORITY 87
It is well settled that in making appointments the Government should not act
arbitrarily. If the Government does not make any appointment, no candidate can insist
on such appointments being made merely because he has been selected for one of the
posts. The Government may not appoint all the candidates selected for such
appointments or fill up all the vacancies, but in filling up the vacancies the Government
cannot act arbitrarily. The appointments must be made in order of the rank in the list. If
Government does not choose to appoint a candidate whose rank is higher in the list than
one who has been appointed, such action of the Government must be justified with
reasonable grounds. The Court is entitled to know the reasons which prompted the
Government to appoint a less meritorious candidate in preference to another more
meritorious one. If there is no reasonable ground for the exercise of such discretion, the
Court will at once intervene and strike down the action of the Government as violative
of Article 14 and 16(1) of the Constitution. A fair play in action on the part of the
Government is postulated in all executive acts including the employment to State
services. State of West Bengal v. Tapan Kumar Sen, 1982 Lab IC 303: 1982(1)
SLR 584.
54. Appointment for Political Objects — It will be an abuse of the executive
powers of the State, if posts are created in public service and appointments are made
thereto, for achieving political objects or on considerations which are extraneous made
irrelevant to the object for which the power is vested in the State. K.M. Joseph v. State
of Kerala, AIR 1968 Ker 244.
55. Whole Thing Completed in Haste in one day in absence of Secretary —
Regular Secretary was on leave who was on Departmental Promotion Committee.
Principal Secretary to the Chief Minister was appointed additionally as Secretary.
Whole thing was completed in haste in one day. This suggests that some higher up was
interested in pushing through the matter hastily when Secretary of Department was on
leave. Held, matter requires to be considered afresh. S.P. Kapoor v. State of Himachal
Pradesh, AIR 1981 SC 2181: 1982(1) SCR 1043: 1981(4) SCC 716: 1982 Lab IC 9:
1981(3) SLR 220.
56. Consideration of Extraneous Matters — When consideration, extraneous
to the suitability of a person for appointment are taken into account in making an
appointment there is an abuse of discretionary power and so the exercise of power
exceeds the bounds of authority. While the fitness of a person to an office may be
solely within the discretion of the appointing authority, the discretion must be exercised
bona fide. A. Mohambaram v. M.A. Jayavelu, AIR 1970 Madras 64.
57. Membership of Political Party in Power: No Disqualification for
Appointment — The fact that an aspirant for office happens to be an active member of
a political party in power by itself should not and cannot disqualify him if otherwise
suitable for being appointed to a post. A. Mohambaram v. M.A. Jayavelu, AIR 1970
Madras 64.
58. Political convictions or affiliations no bar for Public Employment —
The freedom of association entitles a citizen to join any party or association,
notwithstanding its political colour or programme, so long as that party or organisation
is not banned or declared illegal by law. A citizen who is otherwise found fit for public
88 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
for the particular purpose of filling it, so long as that appointment is otherwise,
unexceptionable. Such ad hoc appointments are often made where there are no service
rules to guide and control the discretion of the appointing authority. It may also be that
the service rules may themselves provide for the making of ad hoc appointments. But
where a service rule provides for the filling of a temporary vacancy, that rule will
govern the discretion of the appointing authority and will prevail. It may be that while
making the appointment under the service rules the appointing authority may as a
matter of abundant caution, characterise it as ad hoc, but it is not possible for that
authority to disregard the rule altogether and take the stand that it is not bound by it. To
put it more plainly, it is not permissible for the appointing authority in such a case to
say that it can make an ad hoc appointment simply for the particular end or purpose of
giving the employment to a particular person. Swayamber Prasad Sudrama v. State of
Rajasthan, AIR 1972 Raj 69: 1971(2) SLR 767.
SC 3471: 1999(7) SCC 209: 1999(7) JT 153: 1999(7) SLT 476: 1999 Lab IC 3128:
1999(4) LLN652: 1999(5) SLR 268.
Appointment on ad-hoc basis clearly stipulating that the ad hoc service shall
not be counted towards seniority. Subsequent claim of selection grade by including the
service referred on ad hoc basis in the past service is not proper. Held that service of
employees commenced on regular appointment after selection of UPSC and not earlier.
State of Haryana v. Haryana Veterinary & A.H.T.S. Asson., AIR 2000 SC 3020:
2000(8) SCC 4: 2000(10) JT 561: 2000 Lab IC 3127: 2000(4) LLN 588: 2000(5) SLR
223 (SC).
64. Ad hoc Appointment does not vest Right to Hold Post — Ad hoc
appointee or promotee has no right to the post because by its very nature it is a stop gap
arrangement until a regular appointment or promotion is made and therefore, in that
sense the incumbent holds a very precarious tenure and would, therefore, be liable to be
reverted to make room for a regular appointee or promotee, pending which appointment
or promotion, the ad hoc arrangement was resorted to. M. Venkat Swamy v. Government
of A.P., 1972 SLR 249; Pooswamy, M. v. Union of India, 1978 SLJ 297: 1978(2) SLR
334; Dalpratap Singh v. State of M.P., 1980(1) SLR 19; Bishundeo Mahto v. State of
Bihar, 1981(3) SLR 467.
65. Ad hoc Appointment does not Confer any right to claim Such Post or
Seniority on that Account — Jiwan Lal v. State of H.P., 1980(2) SLR 799; A.V.
Sharma v. State of H.P., 1979 SLJ 642: 1981(1) SCR 359.
It is beyond doubt that even though an ad hoc appointee has no right to hold
that post to which he is so appointed, he can nevertheless be reverted to his lower
substantive position only for valid reasons such as his misfit state to hold the post, the
availability of the person holding a lien on the post, selection of a regular incumbent or
other exigencies of public service. An ad hoc appointee cannot, therefore, be reverted
without any rhyme or reason. An ad hoc appointment, though by its nature a precarious
tenure, nevertheless carries a limited right to that extent and if such an appointee is
reverted without a valid reason, he would be entitled to challenge it and seek an
enforcement of the right. Kuldeep Chand Sharma v. Delhi Administration, 1978 SLJ
461: 1978(2) SLR 379.
Where the ad hoc promotee was reverted and juniors to him were retained, the
order was held violative of Article 16. Arun Kumar v. Union of India, 1976 SLJ 163;
R.X.A. de Monte Furtado v. Administrator of Goa, 1982(2) SLJ 103: AIR 1982 Goa 34.
The petitioner was appointed on ad hoc basis and held various posts. He was
reverted to his substantive post and on the same day he was placed under suspension
with immediate effect. Held, the reversion amounts to reduction in rank, under the
circumstances of the case. Since this reduction was done without the procedural
safeguards of Article 311(2) of the Constitution having been followed and is, as such
invalid. R.X.A. de Monte Furtado v. Administrator of Goa, 1982(2) SLJ 103: AIR 1982
Goa 34.
When the period of ad hoc appointment is short and the appointment is not
made in accordance with the rules prescribed for the purpose the said period of ad hoc
appointment cannot be taken into account for considering the seniority. Pushpa Arya v.
Director of A.I.I.M.S., 2001(4) SLR 621 Delhi: 2001(6) AD(Delhi) 890: 2001(94)
DLT 60.
357 (FB); Lashker Singh v. Municipal Corporation of Delhi, 1978 SLJ 695: 1979(1)
SLR 233.
75. Permanent appointment and appointment on probation, distinction
between — Though both the appointments may be made substantively to a permanent
post, the permanent appointee gets a title or a right to hold a post but the probationer
does not get such a right. Jiwan Das v. Municipal Corporation of Delhi, 1971(2) SLR
277 Delhi: 1971 Lab IC 795; Ajudhia Nath Dhingra v. Union of India, 1975(2) SLR
230: 1976 SLJ 357 (FB).
The very fact that a person is a probationer implies that he has to prove his
worth and suitability for the higher post in which he is officiating. If his work is not
found to be satisfactory, he is liable to be reverted to his original post even without
assigning any reason. High Court of Madhya Pradesh through Registrar v. Satya
Narayan Jhavar, AIR 2001 SC 3234: 2001(7) SCC 161: 2001(6) JT 368: 2001 Lab IC
3281: 2002(1) BLJR 450: 2001(91) FLR 626: 2002(1) JLJR 40: 2002(1) Jab LJ 103:
2002(1) Pat LJR 25: 2001 SCC (L&S) 1087: 2001(3) SCJ 135: 2001(3) SLR 645.
76. Post Likely to Continue — Where in the advertisement of the post it was
stated that the post “likely to continue” after………, it was no assurance that the post
would be made permanent. Kedar Nath Bahal v. State of Punjab, 1973(1) SCJ 95: AIR
1972 SC 873: 1972 SLR 320.
77. Officiating or Temporary, Difference in — There is a little difference in
officiating and temporary appointment. Ram Chandra Chaudhuri v. Secretary to
Government of West Bengal, AIR 1964 Cal 265; Parshottam Lal Dhingra v. Union of
India, 1958 SCJ 217: AIR 1958 SC 36: 1958 SCR 828.
78. Temporary or Regular — Mere language of the order of appointment is
not the sole guiding factor to determine whether the appointment is temporary or
regular. The circumstances of the case at the time of appointment and subsequently
should be taken into consideration. J.J.Muralidhara Rao v. State of A.P., 1971(1) SLR
523. For full discussion please see Lashkar Singh v. Municipal Corporation of Delhi,
1979(1) SLR 233: 1978 SLJ 695.
79. Temporary Substantive Appointee Does Not Become Permanent if Post
Declared Permanent — The mere fact that a person who is appointed in a substantive
capacity to a temporary post does not become permanent if the post is declared to be
permanent unless he gets that capacity either under some rule or he is declared or
appointed by the Government as a permanent Government servant. Director of
Panchayat Raj v. Babu Singh, 1973(2) SCJ 577: AIR 1972 SC 420; State of U.P., v.
Nand Kishore Tandon, AIR 1977 SC 1267: 1976(4) SCC 823: 1977 Lab IC 838. See
also P.K. Mary v. Director, I.C.A.R., 1990(6) SLR 322 (CAT Ernakulam); Harinder
Sharma v. State of Punjab, 1998(1) SLR 361 P&H (DB); State of Tamil Nadu v. E.
Pariporranam, 1991(3) SCR 618: 1992(1) SCC Supp 420: AIR 1992 SC 1823: 1992
Lab IC 1803: 1992(19) ATC 653: 1992(6) SLR 730: 1992 AIR SCW 2057.
80. Temporary Post Can Be Held Substantively — Temporary post can be
held substantively but it does not make the post substantive. Parshottam Lal Dhingra v.
Union of India, 1958 SCJ 217: AIR 1958 SC 36: 1958(1) LLJ 544; Rattan Lal Gulati v.
R.8-9] APPOINTING AUTHORITY 95
Union of India, AIR 1955 Punjab 229; V.P. Rehbar v. Punjab State, AIR 1965 Punjab
94; Jugraj Singh v. State of Punjab, 1970 Lab IC 535: 1969 SLR 622 (FB); Baleshwar
Dass v. State of U.P., AIR 1981 SC 41: 1981(1) SCR 449: 1980(4) SCC 226: 1981(1)
SCJ 421: 1981(1) SLJ 233: 1980(3) SLR 422 (SC); Bishundeo Mahto v. State of Bihar,
1981(3) SLR 467; Kamla Prasad v. State of Bihar, 1981(3) SLR 717.
81. Disqualification on Ground of Sex — (i) Disqualification of married
women from being eligible for appointment as District Judge on the ground of sex is
violative of Article 14. Radha Charan Patnaik v. State of Orissa, 1969 SLR 565: AIR
1969 Ori 237.
(ii) Making women ineligible to posts in men”s jails other than those of clerks
and matrons is not discriminatory on grounds of sex alone. Mrs. Raghubans Saudagar
Singh v. State of Punjab, 1971(1)SLR 688: AIR 1972 Punjab 117.
(iii) “We do not mean to universalise or dogmatise that men and women are
equal in all occupations and all situations and do not exclude the need to pragmatise
where the requirements of particular employment, the sensitivities of sex or the
peculiarities of societal sectors or the handicaps of either sex may compel selectivity.
But save where the differentiation is demonstrable, the rule of equality must govern”.
Miss C.B. Muthamma v. Union of India, AIR 1979 SC 1868: 1980(1) SCR 668: 1979(4)
SCC 260: 1979 Lab IC 1307: 1979 SLJ 654; Maya Mukherji Jha v. State of West
Bengal, 1982(2) SLR 505.
(iv) To become a mother is the most natural phenomena in the life of a woman.
Whatever is needed to facilitate the birth of child to a woman who is in service, the
employer has to be considerate and sympathetic towards her and must realise the
physical difficulties which a working woman would face in performing her duties at the
work place while carrying a baby in the womb or while rearing up the child after birth.
The Maternity Benefit Act, 1961 aims to provide all these facilities to a working
woman in a dignified manner so that she may overcome the state of motherhood
honourably, peaceably, undeterred by the fear of being victimised for forced absence
during the pre or postnatal period. Municipal Corporation of Delhi v. Female Workers
(Muster Roll), AIR 2000 SC 1274: 2000(3) SCC 224: 2000(3) JT 13: 2000 Lab IC
1033: 2000(2) SLR 2 (SC).
In another case the appointment was denied to a female candidate on the
ground that she has a child less than 3 years of age. It was held that such denial is
discriminatory as it is for the candidate to make arrangement for the child. Sumitra
Singh v. State of Rajasthan, 2002(2) SLR 594 Raj.
[Also see Reservation of seats or posts for women].
82. Age-limit for Appointment to a Post — It is for the Government to make
the policy about the appointment to a particular post. If the Government thinks that a
person for being appointed as Principal of State Medical College should be between the
age of 45 and 50 years it cannot be said that the Government has acted arbitrarily in the
making of that policy, because age cannot be deemed to be an irrelevant factor for such
a post. Dr. S.S. Misra v. State of U.P., 1974 ALJ 427; Radha Charan Patnaik v. State of
Orissa, 1969 SLR 565: AIR 1969 Ori 237.
96 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
See also A.P. Public Service Commission v. Satyachandra, 1990(13) ATC 708
(SC); N.T. Devin Kutty v. Karnataka Public Service Commission, 1990(14) ATC
688 (SC).
83. Appointment without Consultation with Public Service Commission not
invalid — It is well settled that in respect of the provisions of Article 320 of the
Constitution appointment without consultation with the Public Service Commission
does not make the appointment invalid or void. State of U.P. v. Manbodhan Lal, 1958
SCJ 150: AIR 1957 SC 912: 1958 SCR 533: 1958(2) LLJ 273; Ram Gopal Chaturvedi
v. State of M.P., AIR 1970 SC 158: 1970(1) SCR 472: 1969(2) SCC 240: 1969 429:
1970(1) LLJ 367: 1970(1) SCJ 457; Rabindra Nath Mukherjee v. S.R. Das, 1980 SLJ
67; J.M.J.S. Alexandre Gonsalves Pereira v. Administrator of Goa, 1982(2) SLJ 132.
The recruitment rules made under Article 309 of the constitution have to be
followed strictly and not in breach. If a disregard of the rules and the by-passing of the
Public Service Commission is permitted, it will open a back door for illegal recruitment
without limit. Anuradha Bodi v. Municipal Corporation of Delhi, 1998(5) SCC 293:
AIR 1998 SC 2093: 1998(3) JT 757: 1998(4) SLR 359: 1999(1) SLJ 1: 1999(1) LLJ
560: 1998 Lab IC 1911.
84. Appointment, effect of approval by Public Service Commission — Once
the Public Service Commission conveys its approval, it dates back to the date of
appointment of the officer concerned, it he has continued in the promoted rank from the
date of his promotion, without a break. H.P. Sood v. State of Punjab, 1970 Cur LJ 379:
1970 SLR 483.
85. Appointment by authority not competent to make Appointment — If a
person is appointed by an authority who is not competent to make appointment, such a
person cannot claim the benefit of Article 311 on his removal from service. Narayan
Das v. Deputy Commissioner, AIR 1970 Assam 57.
The appointment by an authority not competent to make it was invalid and
incapable of being validated by subsequent ratification. Ratification can be made by the
competent authority only by an independent order which will take effect from the date
of order. State of Kerala v. K.P. Krishnan, 1978(1) SLR 331.
The appointment was made by the Commandant General even though rule
conferred power on the Provincial Government to make such appointments. Therefore,
Commandant General had the power to dismiss the appellant. The dismissal order
would not be void on the ground that it is made by an authority lower than the
appointing authority. Ramanand Singh v. State of Bihar, 1982(1) SCC 214: AIR 1982
SC 1394: 1982(1) SLR 693: 1982 BLJ 395: 1982 BLJR 438: 1982 Pat LJR (SC) 55:
1982(2) SCWR 209: 1982(14) Lawyer 58. See also State Bank of India, Hyderabad v.
Ch. Hanumantha Rao, 1988(4) SLR 903 AP.
86. Appointment by higher authority — Appointing authority —
Appointment made by higher authority. Order of removal passed by invalid.
Chandrasen Sharma v. Superintending Engineer, AIR 1966 All 232; N. Somasundaram
v. State of Madras, AIR 1956 Mad 419; Bachubha Ramsinh ji v. Shri Shivlal, AIR 1970
Guj 180.
R.8-9] APPOINTING AUTHORITY 97
89. Appointment with a back date — It is neither in the public interest nor in
the interest of justice that an order of appointment be given effect to from a back date,
unless concerned employee, as a matter of right, was entitled to be appointed or
promoted from that date and the Government was duty bound to do so. Bal Krishan
Soni v. State of Haryana, 1982(1) SLR 373.
Sandhu v. State of Punjab, 1969 SLR 613; Salim Ahmad Chohan v. Punjab State
Electricity Board, 1971(1) SLR 55.
Another candidate is appointed in newly created post and the employee of old post
is not confirmed. Mahesh Kumar Mudgil v. State of Uttar Pradesh, 1998(1) SCJ 266.
92. Suitability for Appointment — It is the appointing authority who has to
be satisfied as to the suitability in respect of age, qualifications, work and character and
not the Court. Court cannot take the place of appointing authority. Prafulla Chandra
Bhowmik v. Union Territory of Tripura, AIR 1963 Tripura 38.
For guidelines followed by Selection Board see Siya Ram v. Union of India,
1998(1) SCJ 260. For no infirmity in selection process see Union of India v. W.S.
Chona, 1998(1) SCJ 336.
93. Oral Interview Test — In the matter of public employment, the oral
interview test should not be relied upon as an exclusive test, but it may be resorted to
only as an additional or supplementary test and, moreover, great care must be taken to
see that person who are appointed to conduct the oral interview test are men of high
integrity, calibre and qualifications. Ajay Hasia v. Khalid Mujib Saharavadi, 1980(3)
SLR 467 SC: AIR 1981 SC 487: 1981(2) SCR 79: 1981(1) SCC 722: 1981(2) SLJ 651.
See also M.P.P.S.C. v. Navnit Kumar Potdar, 1994(3) Supp SCR 665: 1994(6) SCC
293: AIR 1995 SC 77: 1994(5) SLR 273: 1995(1) SLJ 134: 1994(28) ATC 286: :
1995(1) LLJ 180.
The written examination assesses the man”s intellect and the interview tests the
man himself and the “the twain shall meet” for a proper selection. If both written
examination and interview test are to be essential features of proper selection the
question may arise as to the weight to be attached respectively to them. There cannot be
any rule of thumb regarding the precise weight to be given. It must vary from service to
service according to the requirements of the service, the minimum qualifications
prescribed, the age group from which selection is to be made, the body to which the
task of holding the interview test is proposed to be entrusted and a host of other factors.
It is not for Courts to pronounce upon it unless exaggerated weight has been given with
proven or obvious oblique motives. Lila Dhar v. State of Rajasthan, 1981(2) SLJ 266
(SC): 1981(3) SLR 56.
94. Verification of Character and Antecedents of Persons Selected for
Appointment to Public Posts — Once a fraud is detected, the appointment orders
themselves which were found to be tainted and vitiated by fraud and acts of cheating on
the part of employees, were liable to be recalled and were at least voidable at the option
of the employer concerned. If by committing fraud any employment is obtained such a
fraudulent practice cannot be permitted to be countenanced by a court of law. Union of
India v. M. Bhaskaran, AIR 1996 SC 686: 1995 Supp (4) SCC 100: 1995(5) SLR 796:
1996 SCC(L&S) 162: 1996(32) ATC 94: 1996 Lab IC 581: 1996(1) LLJ 781.
A Division Bench of Kerala High Court in George v. State of Kerala, 1963 KLJ
1155 held that it is open to the State to take into account the character and antecedents
of an applicant before he is appointed to Government service; that in assessing his
character and antecedents the State was not to proceed on arbitrary and irrelevant
R.8-9] APPOINTING AUTHORITY 99
considerations; and that generally, in this region of assessment the Court should not
substitute its own assessment for those of the executive, with which rests the primary
duty of appointment. Division Bench of Kerala High Court in State of Kerala v. K.A.
Balan, 1979(1) SLR 94, has held that the rule laying down that no person shall be
eligible for appointment to any service by direct recruitment unless the State
Government is satisfied that his character and antecedents are such as to qualify him for
such service does not offend Article 16 or Article 311 or the principles of natural
justice.
In Kalluri Vassaya v. Superintendent of Post Offices, 1982 Lab IC 1143:
1980(2) SLR the learned single Judge who decided the case looked into the report and
held that all the allegations contained in the said report, except the second allegation,
are irrelevant and held that having regard to the impact the report has upon the life and
career of the petitioner and his fundamental rights, and also because acting upon the
said report entails grave and serious consequences to the petitioner, it is but just and
fair that the petitioner ought to have been heard with respect to the allegations
contained in the said report before acting upon it and before denying him public
employment on that basis. He did not agree with Kerala view that petitioner had no
right to be heard with respect to the allegations received against him.
Services of the petitioner were terminated on the police verification report that
he was involved in a criminal case. Held, the order cannot be sustained as the petitioner
was not given any notice to terminate his service prior to the impugned order. Even in
cases, where there are statutory rules, it is said audi-alteram partem operates. K.
Lakshma Reddy v. Director of Postal Services, 1980 SLJ 257: 1982(1) SLR 785.
The High Court is not right in holding the order of compulsory retirement as
malafide and is in fact an order of punishment. State of Madhya Pradesh v. Indra Sen
Jain, 1998(1) SLJ 305.
95. Opportunity of hearing before cancellation of appointment— In the
case of selection of an individual if his selection is not found correct in accordance with
law, necessarily, a notice is required to be issued and opportunity be given. In a case
like mass mal-practice, the question emerges: whether the notice was required to be
issued to the persons affected and whether they needed to be heard? In answer to this
question the Supreme Court has held that nothing would become fruitful by issuance of
notice. Fabrication would obviously either be not known or no one would come forward
to bear the brunt. Under these circumstances, it was further held that the Tribunal was
right in not issuing notice to the person who are said to have been selected and given
selection and appointment. Biswa Ranjan Sahoo v. Sushanta Kumar Dinda, AIR 1996
SC 2552: 1996(5) SCC 365: 1996(6) JT 515: 1996 SCC(L&S) 1179: 1996 Lab IC 2253:
1996 (3) SLJ 62: 1996 (5) SLR 172: 1996 (2) LLJ 763: 1996 (2) LLN 863: 1996 (74)
FLR 2737.
96. Public Employment (Requirements as to Residence) Act, 1957, Section
3 Ultra Vires — The claim for supremacy of Parliament is misconceived. Parliament,
in this, as in the other matters, is supreme only in so far as the Constitution makes it.
Where the Constitution does not concede supremacy, Parliament must act within its
appointed functions and not transgress them. Section 3 of Public Employment
100 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.8-9
PART IV
SUSPENSION
R.10
COMMENTARY
SYNOPSIS
1. Suspension, general principle explained .......................................................................... 105
2. Suspension, kinds of ......................................................................................................... 107
3. Form of order .................................................................................................................... 107
4. Effect of Suspension ........................................................................................................ 107
5. “Suspension” and “put off”, distinction between ............................................................ 107
6. When a Government servant may be suspended or deemed to have been suspended ..... 107
7. Suspension before charges have been framed ................................................................. 108
8. Not obligatory to suspend ................................................................................................ 109
9. Suspension pending final order ........................................................................................ 109
10. Suspension pending conclusion of enquiry and refusal to permit to retire ...................... 109
11. Suspension as long as criminal trial in progress .............................................................. 109
12. Suspension pending preliminary enquiry… .................................................................... 109
13. Preliminary enquiry cannot be equated to an investigation ............................................ 109
14. Power of suspension to be sparingly exercised ............................................................... 110
15. Who can suspend a Government servant ........................................................................ 110
16. Inherent powers of suspension ....................................................................................... 110
17. Publication of regulation empowering the suspension .................................................... 111
18. Authority competent to appoint or dismiss is entitled to suspend .................................. 111
19. Delegation of power suspend .......................................................................................... 111
20. Suspension by authority other than appointing authority ............................................... 112
21. Power of head of office to suspend ................................................................................ 112
22. Suspension order to show why it has been passed .......................................................... 112
23. Suspension cannot be for indefinite period .................................................................... 112
24. Suspension under political pressure ............................................................................... 113
25. Suspension with retrospective effect .............................................................................. 113
104 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.10
SUBSI STENCE ALLOWA NCE, PAY MENT OF PAY AND A LLOWA NCE
288: 1977 Lab IC 697: 1977 (1) SLR 433. See also R.K. Mehta v. Union of India, 1993
(6) SLR 258 (CAT: New Delhi); Director, BCG Vaccine Laboratory, Madras v. S.
Pandian, 1996 (8) SLR 168 (SC): 1997(11) SCC 346: 1996(2) LLJ 634: 1996(1)
LLN 799.
When the employee is placed under suspension, he is demobilised and the
salary is also paid to him at a reduced rate under the nick name of “Subsistence
Allowance”, so that the employee may sustain himself. M. Paul Anthony (Captain) v.
Bharat Gold Mines Ltd., AIR 1999 SC 1416: 1999(3) SCC 679: 1999(2) JT 456:
1999(2) KLT 17(2): 1999(2) SLR 338 (SC): 1999 Lab IC 1565: 1999(2) LLN 640:
1999(82) FLR 627: 1999(95) FJR 1: 1999(2) SCJ 358: 1999(3) SLJ 152.
An order of suspension of a government servant does not put an end to his
service under the Government. He continues to be a member of the service in spite of
the order of suspension. O.P. Gupta v. Union of India, 1987(4) SCC 328: 1987(5) SLR
288 (SC). The suspended employee continues to be a member of the government service
but is not permitted to work and further during the period of suspension he is paid only
some allowance generally called subsistence allowance -which is normally less than the
salary instead of the pay and allowances he would have been entitled to if he had not
been suspended. Khem Chand v. Union of India, 1958 SCR 1080: AIR 1958 SC 300
The investigation mentioned in rule 10(1)(b) CCS (CC&A) Rules, 1965 means
investigation into a criminal case. Ram Kanwar v. Union of India, (1988) 7 SLR 363
(CAT Delhi).
The employee is convicted in the criminal charge and later on he was acquitted.
The suspension is held by court as unjustified. The court ordered for full pay and
allowances for the period of suspension R.K. Mehta v. Union of India, 1993 (6) SLR
258 (CAT New Delhi).
During the period of suspension a Government servant cannot be asked to
render any service or perform any duty. Chittaranjan Ghose v. IGP, W.B., 1979 (2)
SLR 194; Zonal Manager, Food Corporation of India v. Khaleel Ahmed Siddiqui, 1982
Lab IC 1140: 1982 (2) SLJ 166: 1982 (2) SLR 779.
The appellant postman was suspended for delivering the registered letter to
another person other than addressee. The charge sheet is not filed within three months
and the review of suspension is not done within six months, which should be done as
per Govt. instructions. For these reasons the continued suspension is not held illegal. G.
Yousoof v. Assistant Superintendent of Post Offices, 1994 (8) SLR 415 (CAT Mad.).
Rule 10(1)(a) of the Central Rules empowers the appointing authority to place
a Government servant under suspension if inquiry is either being conducted against him
or is contemplated against him. In the present case, a disciplinary authority had decided
to initiate the disciplinary proceeding against the respondent and pursuant to the said
decision and in exercise of the power vested in him by Rule 10(1)(a) of the Central
Rules, the respondent was kept under suspension. Therefore, the concerned authority
was well within its statutory power to keep the respondent under suspension and, the
High Court was held to be in error in finding fault with the said decision on the ground
that there was no need to keep the respondent under suspension when he is undergoing
R.10] SUSPENSION 107
a sentence of imprisonment. Union of India v. Sunil Kumar Sarkar, AIR 2001 SC 1092:
2001(3) SCC 414: 2001(Supp 1) JT 193: 2001(1) SLR 271 (SC): 2001 Lab IC 1114:
2001 AIR SCW 957: 2001(2) Raj LW 180: 2001 SCC (L&S) 600.
2. Suspension, Kinds of — Three kinds of suspension are known to law. A
Public servant may be suspended as a mode of punishment or he may be suspended
during the pendency of an enquiry against him, if order appointing him or statutory
provisions governing his service provide for such suspension. Lastly, he may merely be
forbidden from discharging his duties during the pendency of an enquiry against him,
which act is also called suspension. V.P. Gindroniya v. State of Madhya Pradesh,
(1970) 2 SCJ 573: (1970) I SCWR 294: 1970 SLR 329: AIR 1970 SC 1494: 1970(3)
SCR 448: 1970(1) SCC 362; see also D.D.Suri v. Government of India, 1973 SLJ 468:
1973 (1) SLR 668.
3. Form of order — Suspension order need not disclose that any disciplinary
proceedings were contemplated or were pending or any criminal offence was under
investigation. It would be sufficient if the competent Authority records in its
proceedings that the conditions mentioned in Regulation concerned were in existence.
Therefore non-mentioning that any disciplinary proceedings contemplated or were
pending against or any criminal case was under investigation, inquiry or trial is not
fatal. Punjab National Bank v. D.M. Amarnath, 2000(10) SCC 162: 2000(2) LLJ 256:
2000(86) FLR 640
4. Effect of Suspension — Once the employee is placed under suspension, the
Management cannot take any work from the suspended employee nor can the employee
claim full salary from the Management. But the Management has to pay the Subsistence
Allowance to the employee so that he may sustain himself. Ram Lakhan v. Presiding
Officer, AIR 2000 SC 1946: 2000(10) SCC 201: 1999(10) JT 466: 2000(2) CLT
311(SC): 2000 Lab IC 1371: 2000(2) SLR 177 (SC); followed in Ranjit Singh v.
Presiding Officer, 2003 (1) SLR 366 (P&H).
5. “Suspension” and “Put Off”, Distinction Between — The 1965 Rules do
not contemplate a put off and the Extra Departmental Branch Post Master E.D.A.
(Conduct and Service) Rules do not contemplate an act of suspension. Whether an
action is called suspension or put off, it has the effect of preventing the incumbent from
attending his duties and drawing regularly perquisites due to him. The principles of law
governing suspension should be applied to the action of put off. K.Sardamma v.
Superintendent of Post Offices, 1982 (2) SLJ 156.
6. When a Government Servant May Be Suspended or Deemed to have
been Suspended — (1) A Government servant may be placed under suspension:—
(i) where a disciplinary proceeding against him is contemplated
or is pending; or
(ii) where he has engaged himself in activities prejudicial to the
interest of the security of the State; or
(iii) where a criminal case against him is under investigation,
inquiry or trial.
108 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.10
hours in Jail then he is deemed to have been placed under suspension. Animesh
Sengupta v. Union of India, 1994 (2) SLR 139 (CAT Calcutta) (FB).
filed. Suspension order was quashed. Madhusudan Bhusan v. State of Orissa, 1975 Lab
IC 11.
Allegation of supervisor”s negligence against the employee and he was placed
under suspension but no charge-sheet issued for two years. Held that an employee
cannot be suspended for an indefinite period and therefore, suspension order directed to
revoked forthwith. Beni Ram Kushwaha v. State of Rajasthan, 2002(2) SLR 550
Raj (DB).
Ordinarily it is for the employer to decide the matter relating to the suspension
of an officer and the Courts are slow in interfering with such matters, but again it all
depends on the facts and circumstances of each case which are required to be examined
to determine whether continuation of suspension would be arbitrary or not. Considering
the fact that the appellants had been under suspension for so many years and no
progress has been made in the criminal cases, It was held that the continuance of their
suspension, was clearly arbitrary and unjustified. K.K. Bhardwaj v. Delhi Vidyut Board,
1999(2) SLR 681 Delhi (DB).
24. Suspension Under Political Pressure — The power of suspension whether
inherent or statutory must be exercised by the repository of the power and that the
exercise of the power must be the free and voluntary act of authority vested with the
power. Suspension order passed under political pressure set aside. C.E. Ernimose v.
State of Kerala, 1970 SLJ 520.
Due to the Assembly question and due to authorities taking notice of holding of
the condolence meeting in which the petitioner was alleged to have discussed regarding
the dissolution of the State Assembly, based upon the report and information from
different quarters, the impugned order cannot be set aside as the same was based upon
the enquiry report and the statutory authorities had applied their mind. Ramdhyan Singh
v. State of Bihar, 1979 (3) SLR 369.
25. Suspension with Retrospective Effect — Order of suspension should not
be given retrospective effect. Such order is illegal. Lekh Ram Sharma v. State of M.P.,
AIR 1959 MP 404; Satkari Chatterji v. Commissioner of Police, AIR 1965 Cal 13;
Nepal Chandra v. District Magistrate, AIR 1966 Cal 485; R Jeevaratnam v. State of
Madras, 1967 SLR 657: (1966) II SCWR 464: (1967) 1 SCJ 404: AIR 1966 SC 951;
Braja Kishore Moharana v. Principal, Ravenshaw College, 1973 SLJ 366; Sisir Kumar
Chattopadhya v. State of West Bengal, 1973 (2) SLR 277; Narayana Misra v. State of
Orissa, 1982 (2) SLR 506; R.K. Mehta v. Union of India, 1993 (6) SLR 258 (CAT New
Delhi; Basant Ram Jaiswal v. Area Manager (North) Mahanagar Telephone Nigam
Ltd., Bombay Telephones, 1993 (6) SLR 639 (CAT Bombay).
26. Suspension is not Reduction in Rank — Order of suspension does not
amount to reduction in rank, Article 311 has no application. Pratap Singh v. State of
Punjab, AIR 1963 Punjab 298; Prem Singh v. State of Punjab, 1968 Cur. LJ 247;
Brahmanand Satpathy v. State of Orissa, AIR 1969 Orissa 224
27. Suspension no Punishment — Suspension of an officer pending a
disciplinary proceeding is not a punishment. Niranjan Misra v. State of Orissa, 1982
(2) SLR 106.
114 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.10
dated 6.2.1987, the Governor of Orissa in exercise of power under sub-rule (1) Rule 12
of the Rules empowered the Collector of the District to connection with the affairs of
the Community Development. Subsequently, the Governor has also empowered the
Collector of the District to suspend a government servant working in connection with
the affairs of the Community Development.
It was held that merely because the Governor subsequently has empowered the
Collector of the District to also inflict minor punishment, it does not mean that by such
delegation the Governor is denuded of his power to delegate power of suspension on the
Collector. Once the Collector was empowered by the Governor to suspend a
Government servant working in connection with the affairs of the community
development, the said power continued to be exercisable by the Collector even
delegation of power on the Collector to impose minor punishment. State of Orissa v.
Baidhar Sahu, AIR 2000 SC 1683: 2000(4) SCC 475: 2000(5) JT 499: 2000 Lab IC
1846: 2000(4) SLR 355 (SC).
Such a rule cannot be said to be unreasonable. It will prevent the officer from
prolonging the disciplinary proceeding against him. Bank of India Officers Association
v. Bank of India, 1979 (2) SLR 326.
Under rules 10(3) and 10(4), Central Civil Services (CCA) Rules, 1965, as
properly interpreted, automatic suspension will operate, on the disciplinary order being
set aside by a court, only if the employee is already under suspension. Otherwise, the
suspension cannot be retrospective. If the disciplinary order is set aside by a court,
employee is entitled to full pay upto court order. N.V.Karwakar v. Deputy Director
(Vigilance), (1988) 7 SLR 514, 522, 523 para 15 (CAT New Bombay).
R.10] SUSPENSION 119
originally passed. H.L. Mehra v. Union of India, 1974 SLJ 379: 1974 (2) SLR 187: AIR
1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396; Anand Narain Shukla v. State of
M.P., AIR 1979 SC 1923: 1980(1) SCR 196: 1980(1) SCC 252: 1979 Lab IC 1214:
1979 (2) SLR 288; A.K. Balakrishnan Nair v. Senior Supdt. of Post Offices, 1981 (3)
SLR 395: 1982 (1) SLJ 345.
48. Sub-rule (5)(a), Operation of — Once the relationship of master and
servant is dissolved, the suspension necessarily comes to an end and sub-rule (5)(a)
cannot possibly be construed to have the effect of continuing the suspension. H.L.
Mehra v. Union of India, 1974 SLJ 379: 1974 (2) SLR 187: AIR 1974 SC 1281:
1975(1) SCR 138: 1974(4) SCC 396. See also Basant Ram Jaiswal v. Area Manager
(North), Mahanagar Telephone Nigam Ltd., Bombay Telephones, 1993 (6) SLR 639
(CAT Bombay).
49. Two Conditions Must Co-exist Before Action can be Taken Under Sub-
rule (5)(b) — One is that the Government servant must be under continuing suspension
and the other is that during the continuance of such suspension “any other disciplinary
proceedings” should be commenced against him. H.L. Mehra v. Union of India, 1974
SLJ 379: 1974 (2) SLR 187: AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396.
50. Suspension Ends on Dismissal, Cannot be Continued Under Sub-rule
(5)(b) — The appellant was suspended when a case in respect of criminal offence was
under investigation against him. Whilst the criminal case was pending in court
departmental enquiry was also started. Special Judge convicted the appellant and the
High Court confirmed the conviction in appeal. The appellant was dismissed under Rule
19(i). Supreme Court on appeal set aside the conviction. In consequence of acquittal the
Disciplinary Authority set aside the order of dismissal, directed the enquiry to continue
and that appellant should continue under suspension until termination of such
proceedings under sub-rule (5)(b) of Rule 10. Held, order of suspension came to an end
when order of dismissal was passed and order continuing suspension was outside the
authority of Disciplinary Authority. H.L. Mehra v. Union of India, 1974 SLJ 379: 1974
(2) SLR 187: AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396.
Amended Rules came into force on 3.4.2004 which extended the period of
suspension, Order of suspension extended due to corruption charges. Held that no
interference with order of extension of suspension period is called for. Prem Narain
Gupta v. Union of India, 2005 (3) SLR 448 (Raj. at Jodhpur)
51. Suspension Does Not Revive, If Termination is Quashed — Suspending
the petitioner pending enquiry into the charge-sheet will come to an end when his
services are terminated. Even if the order determining the employment is quashed, the
suspension order does not revive. Om Prakash Gupta v. State of U.P., 1955 SCJ 640:
AIR 1955 SC 600: 1955(2) SCR 391: 1956(1) LLJ 1, followed in Sarat Chand Misra v.
State of U.P., 1972 SLR 184: 1971 SLJ 1027; H.L.Mehra v. Union of India, AIR 1974
SC 1281: 1975 Lab IC 984: 1975(1) SCR 138: 1974(4) SCC 396; M. Koteswara Rao v.
State of A.P., 1975 Lab IC 1244.
52. Direction to Suspend Employee to Attend Office Daily and Mark
Attendance — Such instructions are inconsistent with the rules. Zonal Manager, Food
122 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.10
Corporation of India v. Khaleel Ahmed Siddiqui, 1982 Lab IC 1140 (AP): 1982 (2) SLJ
166: 1982 (2) SLR 779. Denial of subsistence allowance on the ground that employee
has not marked his attendance during the period of his suspension. No rule in existence
to show that marking of attendance is required from the suspended employee, the denial
of subsistence allowance, held improper. Ganesh Ram v. State of Bihar, 1995(2) PLJR
90 affirmed in Anwarun Nisha Khatoon v. State of Bihar, AIR 2002 SC 2959: 2002(6)
SCC 703: 2002(6) JT 205: 2002(5) SLR 626 (SC): 2002 Lab IC 2979: 2002 AIRSCW
3461: 2002(3) BLJR 1872: 2002(3) LLJ 844: 2002(4) Pat LJR 68: 2002 SCC(L&S) 961:
2002(95) FLR 40.
In another case, where the Rule itself required the delinquent to present himself
daily for attendance, it was held that such Rule was arbitrary and did not serve any
public purpose and therefore was violative of Article 14 and 19(1)(d) of the
Constitution. Suresh Chowdhry v. Union of India, 2003 (2) SLR 426 (Cal.).
But where rules required that even during the period of suspension the police
officer is required to attend to roll call and be available to the authorities and he
remained absent from duty on the ground of non-payment of subsistence allowance it
was held that it was his duty to go to the office and claim and collect allowance, which
if it is not paid, necessary action can be taken. It was therefore held that the conclusion
of disciplinary authority that he was wilfully absent from service was proper. State of
Punjab v. Dharam Singh, AIR 1997 SC 1905: 1997(2) SCC 550: 1996(6) SLR 361:
1997(2) SLJ 201: 1997 Lab IC 1918: 1999(3) LLJ 58.
53. Judicial review of suspension— The High Court in its extra-ordinary
jurisdiction does not interfere in the matter of suspension order with the issuance of
charge-sheet by the department unless such orders of suspension are totally mala fide or
the orders of the charge-sheet are based upon no evidence altogether. The matter of
evidence cannot be scrutinised in writ jurisdiction under Articles 226/227 of the
Constitution of India, especially the writ in the nature of certiorari, which only talk of
supervisory jurisdiction. Arun Malik v. State of Haryana, 2002(3) SLR 217 P&H.
54. Restraint on suspension by temporary injunction — Interim injunction
passed by the Court restraining employer from suspending employee without stating
any reason or recording satisfaction of ground required for passing order of temporary
injunction. As interim injunction was granted contrary to settled legal position, the
same was set-aside. Deputy Manager, Disciplinary Authority, Oriental Insurance Co.
Ltd. v. K. Veerasamy, 1999(5) SLR 461 Mad.
SUBSISTENCE ALLOWANCE, PAYMENT OF PAY AND ALLOWANCE
55. Subsistence Allowance: Admissible on Suspension — A Government
servant under suspension or deemed to have been placed under suspension shall be
entitled to payments as provided in F.R. 53, 54-A, 54-B. Employee under suspension is
entitled to subsistence allowance. Government is not obliged to pay full salary. K.K.
Jaggia v. State of Punjab, AIR 1968 Punjab 97 (FB); State of M.P. v. State of
Maharashtra, AIR 1977 SC 1466 : 1977(2) SCR 555: 1977(2) SCC 288: 1977 (1) SLR
433: (1977) 2 SCJ 20: 1977 Lab IC 697. See also K. Unnikumaran v. Director General
of Ordnance Factory, Board Calcutta, 1994 (6) SLR 464 (CAT Madras).
R.10] SUSPENSION 123
It was held that the above rule is unreasonable and clearly violative of Article
14 as well as 21 of the Constitution of India. Obviously the subsistence allowance is the
basic monetary relief provided to an employee which cannot be reduced to the level of
Rs. 1/- which would lead the petitioners to total starvation which is patently contrary to
the enhanced concept of personal liberty under Article 21 of the Constitution of India
which entitled to right to live with human dignity. The aforesaid second proviso to Rule
34(2) is also violative of Article 14 of the Constitution of India as the same is
unreasonable and has no rational nexus with the object sought to be achieved.
Basweshwar M. Mamdapure v. Primary Education Board, Solapur Corporation,
Solapur, 1999(1) SLR 421 Bom (DB).
59. Denial under Standing orders — Under Section 10A, Workman under
Industrial Employment Standing Order Act has a right to receive subsistence allowance
and the same cannot be curtailed by certified standing order. Mamta Parsad v.
Presiding Officer, 2002(1) SLR 232 (P&H).
exonerated on merits, he is not entitled to full pay. Even assuming that the petitioner
was acquitted on benefit of doubt, it cannot be said that he is acquitted for non-
compliance with the technical rules of procedure. An order under F.R. 54(2) or
F.R.54(4) cannot be issued without notice to the delinquent office. It was further held
that F.R. 54 is not applicable to cases where a Government servant is suspended in view
of pending criminal case. It is applicable only to the cases of reinstatement (or
revocation of the suspension order) where an order of dismissal, removal or compulsory
retirement passed in a departmental proceeding is set aside. A Government servant
cannot be deemed the benefit of “duty” and “full pay” where such a servant is
suspended to the pendency of a criminal case in which he is acquitted. Mohanlal v.
Union of India, 1982 Lab IC 594.
(ii) The acquitted employee is entitled to full salary and allowances since
the date of suspension.
(iii) Neither Fundamental Rules, rule 54B nor instructions issued under the
Central Civil Services, Classification etc. Rules, nor administrative
instructions can empower the Government to withhold full pay and
allowances for the period of deemed suspension which is exclusively
relatable to detention and prosecution in criminal court. A.Thankavelu
v. Superintendent of Post Offices, (1990) 7 SLR 348, 353, para 9 (CAT
Ernakulam).
PART V
PENALTIES AND DISCIPLINARY AUTHORITIES
R . 11
COMMENTARY
The commentary on Rule 11 is very exhaustive and has therefore been divided
into five synopsis.
Synopsis – 1. Relates to penalties in general, minor penalties, censure,
withholding of promotion, recovery from pay of whole or part of pecuniary loss caused
to Government and withholding of increments of pay. Clauses (i), (ii), (iii), (iv),
Explanation (i), (ii) and (iii).
Synopsis – 2. Relates to reduction to lower stage in time-scale of pay, reduction
to lower grade, post or service, postponement of future increments, reversion and
replacement of services of borrowed servants. Clause (v) and (vi), Explanation (iv), (v)
and (vi).
Synopsis – 3. Relates to compulsory retirement, retirement and superannuation.
Clause (vii), Explanation (vii).
Synopsis – 4. Relates to discharge, removal and dismissal from service. Clauses
(viii) and (ix).
Synopsis – 5. Relates to termination of services of (a) a Government servant
appointed on probation, (b) a temporary Government servant, (c) a Government servant
employed under an agreement, Explanation (viii).
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 131
GENERAL
S Y N O P S I S-1
1. Penalty, meaning of ....................................................................................................... 134
2. Penalties which can be imposed .................................................................................... 134
3. Adverse entry in confidential report no penalty ............................................................. 135
4. Discharge or termination of service on abolition of post, no penalty ............................. 135
5. Non-promotion, no penalty ............................................................................................ 135
6. Compulsory retirement in public interest, no penalty..................................................... 135
7. Suspension, no penalty ................................................................................................... 135
8. Transfer, whether penalty ............................................................................................... 136
9. Penalty, quantum of ....................................................................................................... 136
10. Imposing of one or more penalties simultaneously ........................................................ 136
11. Administrative order involving civil consequences........................................................ 137
12. No penalty can be imposed unless charge is found proved ............................................ 137
13. Imposition of penalty of dismissal, removal or reduction in rank .................................. 138
14. Competent authority to impose penalty .......................................................................... 139
15. Application of Article 311 of Constitution ..................................................................... 139
16. Order whether by way of punishment ............................................................................ 141
17. No penalty after retirement............................................................................................. 142
MINOR PENALTIES
CLAUSE (i)
Censure
18. Warning when censure ................................................................................................... 143
19. Warning: promotion ...................................................................................................... 143
20. Show cause notice: vague .............................................................................................. 143
21. Censure, no ground for overlooking seniority for promotion ........................................ 143
CLAUSE (ii)
Explanation (i)
Withholding of Promotion
Non-Promotion
Promotion
22. Promotion, rules be followed ........................................................................................ 143
23. Promotion rules, change of ............................................................................................. 144
132 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
24. Promotion, relaxation of rule in case of scheduled castes and scheduled tribes ............ 144
25. Promotion, administrative instructions ........................................................................... 144
26. Promotion in Defence Services, executive power of Government to formulate policy .. 145
27. Promotion, principle of .................................................................................................. 145
28. Employee cannot compel that he be appointed or promoted .......................................... 145
29. Promotion cannot be claimed as a matter of right .......................................................... 145
30. Promotion case considered ............................................................................................. 146
31. Non-consideration for promotion ................................................................................... 146
32. Non-consideration for promotion as post temporary or on ad hoc basis ........................ 146
33. Non-consideration for promotion as working somewhere else ...................................... 147
34. Non-consideration for promotion when enquiry is pending ........................................... 147
35. Non-consideration for promotion for being punished for insubordination ..................... 147
36. Non-promotion for remarks in confidential report ......................................................... 147
37. No enquiry is required to decide not to promote ............................................................ 148
38. No right to claim promotion till cadre constituted ......................................................... 148
39. Not considered for promotion as took part in strike ....................................................... 149
40. Non consideration for promotion due to disciplinary punishment.................................. 149
41. Consideration of case for promotion long before vacancy arises ................................... 149
42. Pleading cause for promotion by M.L.A. ...................................................................... 149
43. Promotion, higher educational qualification no proof of more merit ............................ 150
44. Promotion, keeping of in abeyance ............................................................................... 150
45. Promotion, principles of natural justice cannot be applied ............................................ 150
46. Punishment of censure, no bar for promotion ............................................................... 150
47. Departmental Enquiry and Promotion ........................................................................... 150
48. Promotion and sealed cover procedure ........................................................................... 150
49. Promotion, “next below rule” explained ....................................................................... 152
50. Promotion on basis of seniority-cum-merit or fitness ................................................... 152
51. Promotion cannot be claimed by seniority alone ........................................................... 152
52. Promotion as Addl. District and Sessions Judge ........................................................... 153
53. “Seniority-cum-fitness, seniority-cum-merit and merit-cum seniority”, principles of .. 153
54. Promotion to selection post --
(i) Not a matter of right .......................................................................................... 154
(ii) Seniority ........................................................................................................... 154
(iii) Merit ................................................................................................................ 154
(iv) Authority who can make selection................................................................... 155
(v) Administrative Instructions............................................................................... 155
55. Promotion by selection ................................................................................................... 155
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 133
CLAUSE (iv)
Explanation (ii)
Withholding of Increments of Pay
83. Increment defined........................................................................................................... 165
84. Advance increment discontinued .................................................................................. 165
85. Increments, discrimination ............................................................................................ 165
86. Increment and moral turpitude ...................................................................................... 166
87. Increment is earned as a matter of course unless withheld ............................................ 166
88. Increment stopped for not passing departmental examination ....................................... 167
89. Increment, stoppage of – Speaking order be passed ...................................................... 167
90. Increment stoppage due to Absence from Duty ............................................................. 167
91. Increment stoppage and Natural Justice ......................................................................... 168
92. Increment when becomes due during period of notice to retire compulsorily ............... 168
93. Postponement of future increment ................................................................................. 168
94. Entitlement on reinstatement .......................................................................................... 168
Explanation (iii)
Stoppage at the Efficiency Bar
95. Efficiency bar, crossing of ............................................................................................. 168
96. Stoppage at efficiency bar for unfitness ........................................................................ 169
97. Stoppage at efficiency bar for adverse remarks ............................................................. 169
98. Stopping of crossing of efficiency bar for unsatisfactory work and inefficiency .......... 169
99. Discretion of authority to allow crossing of efficiency bar from a certain date.............. 170
100. Discretion of authority not to allow to cross efficiency bar: whether court can interfere
in the discretion of Authority ........................................................................................ 170
101. Order stopping to cross efficiency bar, time when to be passed .................................... 170
102. Order allowing to cross efficiency bar whether condones all previous adverse
entries ............................................................................................................................ 170
LLN 452: 1999(94) FJR 62. No penalty can be imposed outside the Classification,
Control and Appeal Rules.
An order passed against a teacher withholding his pay temporarily for
unsatisfactory work was held against the spirit of the constitution. Suraj Narain v. State
of M.P., AIR 1960 MP 303 see also State of Punjab v. Inder Sain Sharma, 1968 SLR
519, wherein it was held that no penalty can be imposed which does not exist in the Act
or Rules.
3. Adverse Entry in Confidential Report : No Penalty — Making of an
adverse entry is not equivalent to imposition of a penalty. R.L.Butail v. Union of India,
(1970) II SCWR 561: (1970) 2 SCC 876: 1970 SLR 426: (1971) 2 SCJ 566.
72: 1994(27) ATC 530: 1994(84) FJR 527: 1994(68) FLR 970: 1994(1) LLN 889:
1994(2) SLR 384: 1995(1) LLJ 568.
8. Transfer, Whether Penalty — Permanent service or department can be
made irrespective of the wishes of the Government servant. The transfer of lien is also
justified. [Fateh Singh Chugha v. State of Punjab, AIR 1970 P&H 325; Mathew
Muthalali v. Revenue Divisional Officer, 1973 SLJ 213]. But the transfer from one
transfer of an employee always means and implies transfer to the same post which he is
holding or to an equivalent post in the sense of a post in the same grade or carrying the
same pay-scale. Transfer to a lower post is reversion and reduction in rank. Transfer to
a post which has less powers and status is also reduction in rank. [Devi Prasad
Upadhya v. Director of Panchayat Raj, U.P., 1974 (2) SLR 199; Madan Gopal Singh v.
Union of India, 1969 SLR 576 (Delhi)]. Because of certain allegations of misconduct
and wilful disobedience the authorities instead of taking any disciplinary action against
him transferred him. The transfer being by way of punishment is against the provisions
of Article 311(2) without giving him an opportunity of being heard. Biman Kumar Roy
v. S. Lakshminarayanan, 1978 (2) SLR 136.
Also see Transfer (Allied Service Matters).
9. Penalty, Quantum of — In taking action against a Government servant who
is convicted of any offence, the authority concerned has to take into account not merely
the fact of his conviction but should also examine his conduct leading to his conviction
and consider inter alia the nature and quantum of the penalty to be imposed. Rajender
Singh v. Punjab State, 1969 Cur LJ 821: 1969 SLR 754; K.M. Agrahari v. Lt.
Governor, Delhi Administration, 1980 (3) SLR 555: 1981 SLJ 216. See also Asit Baran
Choudhury v. Union of India, 1994 (7) SLR 518 (CAT Calcutta); Ansar Ali Rakshak v.
Union of India, (1984) 1 SLR 369 (Guj).
Unless the punishment or penalty imposed by the Disciplinary or the
Departmental Appellate Authority, is either impermissible or such that it shocks the
conscience of the High Court, it should not normally substitute its own opinion and
impose some other punishment or penalty. Apparel Export Promotion Council v. A.K.
Chopra, AIR 1999 SC 625: 1999(1) SCC 759: 1999(1) LLJ 962: 1999(1) SCJ 265:
1999(1) KLT 38(SN): 1999 Lab IC 918: 1999(1) LLN 1067: 1999(81) FLR 462:
2000(1) SLJ 65.
10. Imposing of One or More Penalties Simultaneously — (i) The words
“The following penalties may, for good and sufficient reasons as hereinafter provided,
be imposed on a Government servant” indicate that it is open to a punishing authority to
impose any one or more of the penalties. There is no bar for the punishing authority to
impose two of the penalties enumerated in the Rule simultaneously. Bairagi Charan
Baisoi v. State of Orissa, 1974 SLJ 25: Punnose v. Manager, P & T, 1977 (2) SLR 399.
(ii) In Swami Saran Saxena v. State of U.P., 1969 SLR 787, it was however,
held that two penalties cannot be imposed for the same misconduct.
(iii) Punishment of withholding increment when the appeal against punishment
was pending and the period for which the increment was with-held expired in the
meanwhile during which he was not considered for promotion. Held that principles of
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 137
mentioned in the show cause notice. Impugned order wholly unsustainable and quashed.
Balraj Kumar Murria v. State of Punjab, 1982 (1) SLR 355.
In criminal case the charge is to be proved by the Standard of proof beyond
reasonable doubt while in departmental proceedings the standard of proof for proving
the charge is preponderance of probabilities. Senior Superintendent of Post Offices,
Pathanamthitta v. A. Gopalan, AIR 1999 SC 1514: 1997(11) SCC 239: 1998(9) JT 332:
1999(1) LLJ 1313: 1999 Lab IC 234: 1999(82) FLR 784: 2000(1) LLN 92; See also
Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh, 1994 Supp (3) SCC 628: 1994(6) JT
109:1994(5) SLR 534: 1994(28) ATC 594: 1994(69) FLR 1078: 1994(4) CCR 769(SC):
1995(2) LLJ 633: 1996(2) LLN 451; Govind Das v. State of Bihar, 1997(11) SCC 361.
13. Imposition of Penalty of Dismissal, Removal or Reduction in Rank —
Article 311 of Constitution provides:—
“(1) No person who is a member of a civil service of the Union or an all India
service or a civil service of a State or holds a civil post under the Union or a State shall
be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in
rank except after an inquiry in which he has been informed of the charges against him
and given a reasonable opportunity of being heard in respect of those charges:
Provided that where it is proposed after such inquiry, to impose upon him any
such penalty, such penalty may be imposed on the basis of the evidence adduced during
such inquiry and it shall not be necessary to give such person any opportunity of
making representation on the penalty proposed:
Provided further that this clause shall not apply:—
(a) where a person is dismissed or removed or reduced in rank on the
ground of conduct which has led to his conviction on a criminal
charge; or
(b) where the authority empowered to dismiss or remove a person or to
reduce him in rank is satisfied that for some reason, to be recorded by
that authority in writing, it is not reasonably practicable to hold such
enquiry; or
(c) where the President or the Governor, as the case may be, is satisfied
that in the interest of the security of the State it is not expedient to hold
such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is
reasonably practicable to hold such inquiry as is referred to in clause (2), the decision
thereon of the authority empowered to dismiss or remove such person or to reduce him
in rank shall be final.”
The penalty of removal from service cannot be imposed without recourse to
disciplinary proceedings. Uttar Pradesh Co-operative Land Development Bank Ltd. v.
Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC 741: 1999(1) CLT 134(SC):
1999(2) SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3) SLJ 124 .
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 139
15. Application of Article 311 of Constitution — The first decision which has
now become a locus classicus on the subject is the decision in Parshottam Lal Dhingra
v. Union of India, 1958 SCJ 217: 1958 SCR 828: AIR 1958 SC 36. The principles that
were laid down in this case are as follows:—
(2) The protection of Article 311 is available only where dismissal, removal or
reduction in rank is sought to be inflicted by way of punishment and not otherwise.
(i) Whether the servant has a right to the post or the rank; and
The principles formulated above have furnished the principal guidelines in all
future cases relating to dismissal, removal or reduction in rank of Government servants.
Depending on the nature and circumstances of each individual case it has often been
necessary for the Supreme Court to clarify and modify these principles.
In State of Punjab v. Sukh Raj Bahadur, (1968) 3 SLR 234: AIR 1968 SC 1089:
1968(3) SCR 234: 1968 SLR 701: (1969) 1 SCJ 51, after analysing the various
decisions the Supreme Court formulated the following propositions:
(1) The Services of a temporary servant or a probationer can be
terminated under the rules of his employment and such
termination without anything more would not attract the operation
of Article 311.
(2) The circumstances preceding or attendant on the order of
termination of service have to be examined in each case, the
motive behind it being immaterial.
(3) If the order visits the public servant with any evil consequences or
casts an aspersion against his character or integrity, it must be
considered to be one by way of punishment, no matter whether he
was a mere probationer or a temporary servant.
(4) An order of termination of service in unexceptionable form
preceded by an enquiry launched by the superior authorities only
to ascertain whether the public servant should be retained in
service, does not attract the operation of Article 311.
(5) If there be a full-scale departmental enquiry envisaged by Article
311 i.e. an Enquiry Officer is appointed, charge-sheet is
submitted, explanation called for and considered, any order of
termination of service made thereafter will attract the operation of
the said Article.
The Sukh Raj Bahadur”s case was followed in Ram Gopal Chaturvedi v. State
of M.P., (1970) 1 SCJ 257: 1970 (1) SCR 472: AIR 1970 SC 158: 1969(2) SCC 240:
(1969) 1 SCWR 1115. In State of U.P. v. Sughar Singh, 1974(2) SCR 335: AIR 1974
SC 423: 1974(1) SCC 218: 1974(1) SLR 435: 1974 Lab IC 353: 1974 SCC (Lab) 124,
the Supreme Court observed that sometimes in applying the principle of Parshotam Lal
Dhingra v. Union of India, AIR 1958 SC 36: 1958 SCR 828: 1958 SCJ 217 case to the
facts of a particular case, one aspect had to be emphasised in view of the peculiar
circumstances of that case and in doing so that court gave a special formulation which
covered the facts of that case. That principle was later found either inadequate or
inapplicable in another case where the facts and circumstances have been slightly
different and which called for emphasis on a different aspect of the rules. In this way
that court has found it necessary to mould the principles to suit the needs of the varying
circumstances of different cases. The original principles were not intended to be
abandoned but reshaping of the principles became necessary and even unavoidable to fit
them accurately and appropriately to new set of circumstances.
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 141
2002(92) FLR 349: 2002(100) FJR 64: 2002(1) Mad LJ 151: 2002(2) Mah LJ 151:
2002(1) Pat LJR 204: 2002 SCC(L&S) 170: 2002(1) SLJ 336.
The employer is entitled to engage the service of a person on probation. During
the period of probation, the suitability of the recruit/appointee has to be seen. If his
services are not satisfactory which means that he is not suitable for the job, then the
employer has a right to terminate the services as a reason thereof. If the termination
during probationary period is without any reason, perhaps such an order would be
sought to be challenged on the ground of being arbitrary. Therefore, normally, services
of an employee on probation would be terminated, when he is found not to be suitable
for the job for which he was engaged, without assigning any reason. If the order on the
face of its states that his services are being terminated because his performance is not
satisfactory, the employer runs the risk of the allegation being made that the order itself
casts a stigma. Normally, therefore, it is preferred that the order itself does not mention
the reason why the services are being terminated. Krishnadevaraya Education Trust v.
L.A. Balakrishna, AIR 2001 SC 625: 2002 SCC(L&S) 53: 2001(1) JT 617: 2001(1) SLR
635 (SC): 2001 Lab IC 642: 2001 AIRSCW 253: 2001 AIR Kant HCR 2152: 2001(1)
Cur LR 534: 2001(2) LRI 1248.
In case of refusal to extend period of probation It was held that no Court can
direct an authority to extend the period of probation. Order of termination being
exfacie not stigmatic in nature it was held that no interference can be made with the
order of termination. Deputy Inspector General of Police, Kurnool v. R.S. Madhu Babu,
2002(2) SLR 525 AP (DB).
17. No Penalty After Retirement — It is now well settled that a disciplinary
proceeding against a Government servant comes to an end when he retires and there is
no power in Government to retain him in service so that a punishment may be imposed
on him in a pending disciplinary proceeding. K.S. Rajasekhriah v. State of Mysore,
1968 SLR 269; Subba Rao v. State of Mysore, 1963 (1) Mys LJ 80; A.R.R. Deshpande
v. Union of India, (1971) 2 SLR 776; O.P.Gupta v. Union of India, 1981 (3) SLR 778;
Mukhtiar Chand Dhir v. State of Punjab, 1982 (1) SLR 889.
In one case, in the service rules no specific provision was made for deducting
any amount from the provident fund consequent to any misconduct determined in the
departmental enquiry nor was any provision made for continuance of departmental
enquiry after superannuation. Held that in view of the absence of such provisions in the
abovesaid regulations, it must be held that the Corporation had no legal authority to
make any reduction in the retiral benefits of the appellant. There is also no provision for
conducting a disciplinary enquiry after retirement of the appellant and nor any
provision stating that in case misconduct is established, a deduction could be made
from retiral benefits. Bhagirathi Jena v. Board of Directors, O.S.F.C., 1999(3) SCC
666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999
Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143: 1999(95) FJR 21: 1999(3)
SLJ 294.
When no disciplinary action is initiated under All India Service Rules while the
employee was in service disciplinary action cannot be taken after the retirement of the
employee and similar proceedings initiated under State Rules prior to promotion of the
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 143
candidate to All India Service cannot be continued after such promotion. State of
Rajasthan v. P.D. Paliwal, 2002(2) SLR 164 Raj (DB).
In another case it was held that the Government can conduct inquiry into
misconduct, negligence or financial irregularity even after retirement of an employee.
D.C. Mazumdar v. Union of India, 1999(5) SLR 338 Delhi (DB): 1999(77) DLT 442:
1999(1) AD(Delhi) 649: 1999(1) LLJ 871.
The enquiry proceedings can be legally continued against the officer even if he
has been prematurely retired from service. P.K. Jain v. State of Haryana, 1999(1) SLR
337 P&H (DB); relying upon Ishar Singh v. State of Punjab, 1994(3) Recent Services
Judgments (RSJ) 543: 1993(4) SLR 655 (P&H) (FB).
MINOR PENALTIES
CLAUSE (i)
Censure
18. Warning When Censure — Disciplinary authority issued warning
intended to be taken into consideration for assessing the official career of petitioner.
Copy of the order placed in the character roll of the petitioner. Such a “warning”
amounts to penalty of “censure” on the finding that he was guilty of misconduct.
Nadhan Singh v. Union of India, 1969 SLR 24 (Delhi).
19. Warning: Promotion — If “Warning” given to any employee without
hearing him, cannot be used against the employee who is warned, when considering his
suitability for promotion. Madhavan v. CIT, (1983) 1SLJ 240: (1982) 2 SLR 607 (Ker).
20. Show Cause Notice: Vague — Show cause notice was served and
appellant filed the reply. Penalty of censure was imposed on him. Held, show cause
notice was too vague to permit the appellant to give an effective reply and the order was
therefore struck down. B.D. Gupta v. State of Haryana, AIR 1972 SC 2472: 1973(2)
SCR 323: 1973(3) SCC 149: 1972 SLR 845: (1973) 1 SCJ 376.
21. Censure, No Ground for Overlooking Seniority for Promotion —
Censure by itself is not a ground for overlooking seniority in the matter of promotion.
S. Mukandan Menon v. State of Kerala, 1970 Lab IC 897: 1970 SLR 586.
CLAUSE (ii)
Explanation (i)
Withholding of promotion, Non-promotion, Promotion
22. Promotion, Rules be Followed — (i) If there are rules for any class, that
class must be governed by these rules, and the recruitments, promotions, seniority etc.,
must be in accordance with those rules. Lehna Singh v. Punjab State, 1970 SLR 844:
AIR 1971 Pun 198. Even in matters of privileges as that of promotion in view of Article
16 of the Constitution which has introduced a concept of rule of law, the State cannot
act arbitrarily. The State must show appropriate statutory rule or principle showing
rational purpose for its action which relates to the function the State performs in
passing any such order to the detriment of the concerned Government servant. V.L.
Poonekar v. L.S. Kaul, 1969 Lab IC 1019.
144 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
It is well settled that rules made under the proviso to Art. 309 are legislative in
character and can be given retrospective effect. The conditions of service could not
however be altered to the disadvantage of petitioners by retrospective amendment of the
Rules. N.C. Singhal v. Director-General of Armed Forces, AIR 1972 SC 628: 1972(4)
SCC 765: 1972 SLR 178: 1972 Lab IC 342; C.Cheluvaiah v. State of Karnataka, 1979
(3) SLR 24. The new rules will not operate to deprive any person of promotions already
earned in the past. Wg. Commander J. Kumar v. Union of India, 1982 (1) SLJ 452: 1982
(1) SLR 715: 1982 Lab IC 1586: AIR 1982 SC 1064: 1982(3) SCR 453: 1982(2) SCC
116.
Any directive which superimposes a new criterion on the rules will be bad as
lacking in jurisdiction. No one can issue a direction which in substance and effect
amounts to an amendment of the rules made by the President under Art. 309.
S.L.Sachdev v. Union of India, 1980 (3) SLR 503: 1981 (1) SLJ 115 (SC): AIR 1981 SC
411: 1981(1) SCR 971: (1980) 4 SCC 562: 1980 Lab IC 1321.
unless the rules are appropriately amended. N.K. Pankajakshan Nair v. P.V. Jayaraj,
2001(3) SLR 580 (SC): 2001(4) JT 406: 2001(2) KLT 141.
26. Promotion in Defence Services, Executive Power of Government to
Formulate Policy — The executive power of the Union of India, when it is not
trammelled by any statute or rule, is wide and pursuant to its power it can make
executive policy. A policy once formulated is not good for ever, it is perfectly within
the competence of the Union of India to change it, rechange it, adjust it and re-adjust it
according to the compulsions of circumstances and imperatives of national
considerations. But one imperative of the Constitution implicit in Art. 14 is that if it
does change its policy, it must do so fairly and should not give the impression that it is
acting by any ulterior criteria or arbitrarily. So, whatever policy is made should be done
fairly and made known to those concerned. Col. A.S. Sangwan v. Union of India, AIR
1981 SC 1545: 1980 Supp SCC 559: 1981 Lab IC 831: 1980 (2) SLR 1.
27. Promotion, Principle of — The principle of “seniority-cum-fitness” or
“seniority-cum-merit” has generally been applied at the lower levels of service where
the duties are of a routine nature. It has also been applied in promotions from a junior
scale post to a senior scale post within the same service. But when the question arises of
appointment to a higher service consisting of posts carrying superior responsibility the
emphasis shifts from “seniority- cum - fitness” to “merit-cum-seniority”. Hari Dutt
Kainthla v. State of H.P., 1974 (1) SLR 208: 1974 SLJ 525 (FB), see also Hari Dutt
Kainthla v. State of H.P., AIR 1980 SC 1426: 1980(3) SCR 363: 1980(3) SCC 189:
1980(2) SLR 154: 1980 Lab IC 825.
Unless the rules show that a particular promotion should be based principally
on the principle of selection, the formula of merit-cum-seniority should be applied, and
the normal principle of seniority-cum-merit should be followed. D.K. Bhatnagar v.
State of H.P., 1979 (2) SLR 693.
28. Employee Cannot Compel that he be Appointed or Promoted — (i) No
employee can compel appointing authority to appoint him to a particular post or to
promote him to a higher category. All that he is entitled to is that his case be
considered. University of J. & K. v. Dharamvir, 1973 (1) SLR 337: Karam Singh
Grewal v. State of Punjab, 1975 (2) SLR 189: 1976 SLJ 189.
(ii) Employee Put on a Panel for Promotion — The circumstances that the
appellant was put on a panel for promotion does not mean that he would be
automatically promoted to the higher post. Being empanelled for promotion confers
upon the person concerned the limited right of being considered for promotion at the
given moment. Events subsequent to the formation of panel may render any person,
who is included in the panel, unfit for promotion. N.M. Siddiki v. Union of India, AIR
1978 SC 396: 1978(2) SCC 349: 1978(2) SCC 349: 1978(1) LLJ 212: 1978 SLJ 576:
1978 (1) SLR 279 (SC).
29. Promotion cannot be Claimed as a Matter of Right — When the
promotion is based on seniority-cum-merit, the officer cannot claim promotion as a
matter of right. If he is found unfit to discharge the duties of the higher post, he may be
passed over and an officer junior to him may be promoted. State of Mysore v. S.
146 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
Mahmood, AIR 1968 SC 1113: 1968(3) SCR 363: 1968 SLR 738; Lal Chand Pargal v.
Director, N.E.S., AIR 1970 J& K 57 (FB); Lalit Mohan Deb v. Union of India, AIR
1970 Tripura 10.
(ii) Supreme Court in Parvez Qadir v. Union of India 1975 (1) SLR 4: 1975
SLJ 130 held, “We do not think that the method of selection based on past performance
as disclosed by the confidential records is not the proper method for adjudging
suitability of the officer concerned.”
The reporting officer had described the petitioner as a mediocre officer and had
cast doubts about his moral character. These remarks had been duly communicated to
the petitioner earlier. Further reports were of the same character which were also
communicated to him. The order promoting his juniors who had better record was
upheld. Bansi Ram Sharma v. State of H.P., 1982 (1) SLJ 140: 1982 (1) SLR 378.
If a candidate was ignored for promotion for there being adverse remarks in his
confidential report which was either not communicated to him or communicated at a
stage when he could not put in a meaningful representation and for that reason the same
were quashed or expunged, it shall be deemed that no such remarks were there in
existence at the time when petitioner was ignored for promotion. The respondent was,
thus, enjoined to consider the case of the petitioner from a date when he was wrongly
ignored. Dharam Pal Panwar v. State of Haryana, 1999(3) SLR 161 P&H (DB).
39. Not Considered for Promotion as Took Part in Strike — Home Ministry
issued orders that adverse entry in the character roll of an employee who took part in
the strike would be taken into consideration for promotion or confirmation and all
employees who were on unauthorised absence on September 19, 1968 would suffer the
consequences of strike for five years. Held, the petitioner obviously became ineligible
for promotion for five years as he had participated in the general strike and could not be
considered for promotion in July 1969 when other persons were selected. Shiv Singh v.
Union of India, 1973 (1) SLR 244: AIR 1973 SC 962: 1974(3) SCC 255: 1973
Lab IC 227.
40. Non consideration for promotion due to disciplinary punishment — The
name of the employee not included in the list drawn for promotion as Deputy Tahsildars
on the ground of punishment imposed after disciplinary proceedings was for stoppage
of increment. It was held that the denial of promotion would not amount to penalty.
Collector of Thanjavur Distt. v. S. Rajagopalan, 2000(9) SCC 145: 2000(3) JT 376:
2000(2) SLR 552: 2000(2) LLN 415: 2000(85) FLR 381.
Once an order of punishment is passed finally, the delinquent would only suffer
the legal consequences arising from that order and it would not be permissible to go
back to the charge to deny him promotional benefits. Otherwise it would amount to
punishing a delinquent employee twice over for the same charge(s). Dhirendra Nath
Saha v. State of Bihar, 1999(3) SLR 135 Pat.
Reduction in basic pay by one stage in the time scale of pay on permanent
basis, held to be major penalty under the rules but the High Court acting on the wrong
concession of the counsel holding it to be minor penalty and directing for consideration
for promotion. Held that when this mistake was pointed out to High Court it should
have really reviewed its earlier order but it having failed to do so, the High Court
judgment was set aside by Supreme Court. Oriental Insurance Co. Ltd. v. Gokulprasad
Maniklal Agarwal, AIR 1999 SC 3407: 1999(7) SCC 578: 1999(2) LLJ 1413: 1999(4)
LLN 22: 1999(83) FLR 361: 1999(5) SLR 485: 2000(3) SLJ 127.
41. Consideration of Case for Promotion Long Before Vacancy Arises —
The right to have one”s case considered for promotion arises or can be claimed by a
Government servant only when a vacancy arises in the promotional cadre and he
occupies a position of seniority or sufficient seniority in the lower cadre which obliges
the Government to take his case also into consideration. If, therefore, a person”s case
for promotion is taken for consideration long before a vacancy arises the appointing
authority is actually trying to confer upon him a right which he does not then possess.
N. Sreenath v. State of Mysore, 1973 SLJ 41: 1972 SLR 449; Surendra P. Gupta
v.D.E.S.U (1973) 1 SLR 227.
42. Pleading Cause for Promotion by M.L.A. — Vacancies in Bihar Junior
Civil Service were to be filled- up by promotion giving chances to non-gazetted
government servants of all Departments. Two M.L.A.”s wrote a letter to the Minister
and advocated the cause of R.7. The Minister directed to send five names and indicated
the preference of R.7 at No. 2 R.7 applied to Chief Engineer that adverse entry in his
character roll may be expunged. The Chief Engineer rejected the prayer. An M.L.A.
wrote a letter to the Minister complaining about the allegedly illegal and unjustifiable
150 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
adverse entry made against R. 7 and the said entry was expunged. Untwala J., observed
“The facts are coercively telling to invite the remark that R.7 instead of doing work in
the office to the satisfaction of his own office bosses was out to please some Minister
and members of the Legislature and sought their help to pull him out of the ditch in
which he found himself on the opinion of his bosses, the Chief Engineer, the Deputy
Secretary and the Secretary”. Order set aside and Government ordered to reconsider the
matter. Shyam Sunder Sen v. State of Bihar, AIR 1972 Patna 44.
43. Promotion, Higher Educational Qualification: No proof of more
merit — Mere possession of higher educational qualifications cannot by itself be taken
to be proof of more merit in a particular officer. Dr. Kartar Singh v. State of Punjab,
AIR 1970 Punjab 112 (FB); Karmon Devi v. State of J & K, 1970 SLR 878; S. Joginder
Singh Grewal v. State of Punjab, 1970 SLR 892.
44. Promotion, Keeping of in Abeyance — A well established proposition in
the matter of enforceability of service conditions is that promotion can never be
claimed as a matter of right. At the same time, the constitutional principle of equality
enshrined in Articles 14 and 16 requires that where occasion arises for consideration the
competing claims for promotion of more Government servants than one, each one of
them is entitled to his case being considered on merits, The power to keep such
consideration in abeyance or to postpone actual grant of promotion which might
otherwise be available to a person is a power which curtails the rights and the
constitutional protection thereof appertaining to the position of a public servant. B.
Chandra Gupta v. Chairman, P&T Board, 1970 SLR 284: 1970 Lab IC 945 (Mysore).
45. Promotion, Principles of Natural Justice Cannot be Applied —
Principles of natural justice cannot be applied to matters of promotion which are purely
administrative in nature. There was no question of giving a reasonable opportunity to
the Government servant of being heard before promotion is refused to him unless the
appointing authority withholds promotion by way of penalty. Lal Chand Pargal v.
Director, NES, AIR 1970 J & K 57 (FB); T.K. Sukumaran v. State of Kerala, 1981 (1)
SLR 332.
46. Punishment of Censure no bar for Promotion — Censure by itself is not
a ground for overlooking seniority in the matter of promotion. S. Mukandan Menon v.
State of Kerala, 1970 SLR 586.
47. Departmental Enquiry and Promotion — By now, it is well laid down
that a public servant whose consideration for promotion has been passed over on
account of the pendency of any departmental enquiry against him, has on his
exoneration, to be considered for such promotion with effect from the date his juniors
were promoted. Digambar Lal Jain v. State of Haryana, (1983) 1 SLR 142, 143 para 1:
(1982) 2 SLJ 536 (P&H).
48. Promotion and sealed cover procedure — When a departmental
proceedings is already pending but no punishment has been inflicted upon and the
question of promotion of the delinquent government servant arises then the
Departmental Promotion Committee can adopt a sealed cover procedure which is well
known in the service jurisprudence. But if the departmental proceeding culminates in
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 151
if he is found meritorious and suitable, has to be brought on the select list and the
“sealed cover” procedure cannot be adopted. The recommendation of the Departmental
Promotion Committee can be placed in a “sealed cover” only if on the date of
consideration of the name for promotion, the departmental proceedings had been
initiated or were pending or on its conclusion, final orders had not been passed by the
appropriate authority. Union of India v. Sudha Salhan, 1998(3) SCC 394: AIR 1998 SC
1094: 1998(1) JT 622: 1998(1) SLR 705: 1998(5) SLR 473: 1998(2) SLJ 265: 1998(2)
LLJ 241: 1998 Lab IC 957: 1998(2) LLN 385.
For “Two Stream Concept” in promotion see Union of India v. W.S. Chona,
AIR 1998 SC 2919: 1998(2) SCC 213: 1997(9) JT 347: (1998) 1 SCJ 336.
(ii) A Public servant placed in the list of seniority where selection for
promotion to the next higher grade is on the basis of seniority-cum-merit, is entitled, on
the plea that list is contrary to rules governing seniority, to claim relief on the footing
that he is deemed equality of opportunity in matters related to employment Union of
India v. V.J. Karnik, (1970) II SCWR 480: 1970 SLR 813.
52. Promotion as Addl. District and Sessions Judge — Once it is found that
experience as Civil Judge Class I at least for a short period is a necessary qualification
for promotion as Addl. District and Sessions Judge and that such a requirement has a
rational relation to the question at issue, it would be surprising to hold that a man, who
again and again had been found unfit to be posted as Civil Judge Class I in comparison
with others who were his juniors in the service, his claim for promotion should be
decided not on the basis of the date on which he was found fit to exercise the power of
Civil Judge Class I, but on the basis of the date of his entry into service. Registrar of
High Court v. B.A. Nigam, AIR 1973 SC 1271: 1973(3) SCR 878: 1973(4) SCC 219:
1973 SLJ 752.
Where senior persons of good merit are ignored, the authorities are expected to
at least make such kind of a record, so as to satisfy the minimum basic requirements of
fair consideration. It is also for the reasons that some material should be available
before the Court in the event such appointments are questioned and are subjected to
154 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
judicial review. Lack of sufficient material itself indicates higher decree of arbitrariness
in such action. Sudha Suri v. Union of India, 2002(1) SLR 665 P&H (DB).
54. Promotion to Selection Post: (i) Not a Matter of Right — Appointment
or promotion to a selection post is not a matter of right. Sant Ram Sharma v. State of
Rajasthan, AIR 1967 SC 1910: 1968(1) SCR 111: 1967 SLR 906: 1968(2) LLJ 830:
(1968) 1 SCJ 672; Guman Singh v. State of Rajasthan, 1971 Supp SCR 900: 1971(2)
SCC 452: 1971(2) SLR 799: 1972 Lab IC 1295: (1973) 1 SCJ 267; Mir Ghulam Hussen
v. Union of India, AIR 1973 SC 1138: 1973(4) SCC 135: 1973 Lab IC 795: 1973 (1)
SLR 953.
When the promotion is in respect of a “selection post” and the principle to be
applied is “merit-cum-seniority”. The principle of seniority-cum-fitness was to be
followed for promotion to the post of Research Officer, the departmental rules clearly
showed that the promotion was in respect of a “selection post” and the promotion was
to be made on the basis of the inter-se-merit of the eligible candidates. In that view of
the matter, it was held that a candidate is not entitled to get promotion to the post of
Research Officer on the strength of seniority alone. Central Council for Research in
Ayureda & Siddha v. K. Santhakumari, AIR 2001 SC 2306: 2001(5) SCC 60: 2001(1)
JT (Supp) 411: 2001(4) SLR 651 (SC): 2001 Lab IC 2073: 2001 AIRSCW 2155:
2001(4) Andh LT 9: 2001(2) Ker LT 775: 2001 SCC(L&S) 772.
(ii) Seniority — Seniority by itself is not a sufficient qualification for
promotion to a selection post. Selection is to be on merit primarily and regard to
seniority is due to be given only when merit is equal. Harinandan Sharan Bhatnagar v.
S.N. Dixit, (1969) 2 SCJ 862: AIR 1970 SC 40: 1970(1) SCR 421: 1969(2) SCC 245:
1969 SLR 468; R.L. Butail v. Union of India, (1970) II SCWR 561: 1970 SLR 926:
(1971) 2 SCJ 566; N.P. Mathur v. State of Bihar, 1971 SLR 335: AIR 1972 Patna 93;
Dr. Jai Narayan Misra v. State of Bihar, (1970) II SCWR 687; Abdul Hamid Matu v.
State of J&K, 1974 SLJ 232; Union of India v. S.K. Srivastava, 1979 (3) SLR 724.
(iii) Merit — It is beyond any debate that merit counts foremost in the matter
of promotion to the selection grade post. Dr Hari Prasad v. State of Bihar, AIR 1972
Patna 4; Lal Chand Pargal v. Director NES, AIR 1970 J&K 57; G.M. Dar v. State, AIR
1970 J&K 90; Union of India v. Durgadas, AIR 1978 SC 1132: 1979(1) SCC 59:
1978(2) SLJ 108(1): 1978 Lab IC 966.
Infliction of the punishment of withholding of increments is a relevant factor to
be taken into account in assessing the merit and ability of the person concerned. Kerala
State Electricity Board v. T.S. Sahasranaman, 1978 (1) SLR 322.
In relation to the promotion of the Private Secretaries of the Judges, Chief
Justice of the High Court in September 1991 fixed the principle and directed that “the
criteria for promotion shall be merit-cum-seniority to be adjudged with reference to
confidential records and dictation-typing and interview tests. Leave and attendance
records shall also be taken into consideration”. When this criterion was challenged It
was held by Supreme Court that the Private Secretaries to the Hon”ble Judges play an
important role in taking down dictations and writing judgement and, if merit is not
given its due consideration and appointments are made on the basis of seniority, then it
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 155
would be difficult for any Judge to discharge his obligations. Hon”ble Chief Justice,
High Court of Bombay v. B.S. Nayak, 2001(9) SCC 763: 2001(4) SLR 31 (SC): 2001(5)
JT 561.
(iv) Authority who can Make Selection — It is well settled that it is only the
authority vested with the power and jurisdiction who would make the selection. If
selection is made by any other authority then that would be without jurisdiction and
void. Sachidananda Mohanty v. Union of India, AIR 1971 Orissa 6.
(v) Administrative Instructions — Government has the power to issue
Administration Order governing the service conditions of its employees in the absence
of any statutory provisions governing the field. M.M. Dolichan v. State of Kerala, AIR
2001 SC 216: 2001(1) SCC 151: 2000(2) JT Supp 571: 2001 Lab IC 66: 2000 AIRSCW
4104: 2001(1) ESC 115: 2001 SCC (L&S) 174: 2000(7) SLR 217.
Where there are no statutory rules regulating the selection, there is no bar to the
Administration giving instructions regarding promotion as long as such instructions are
not inconsistent with any rule of the subject. Lalit Mohan Deb v. Union of India, (1972)
1 SCWR 430: AIR 1972 SC 995: 1973(3) SCC 862: 1972 SLR 411: (1973) 2 SCJ 92.
Right of consideration for promotion available under statutory rules cannot be
taken away by an administrative order which is in the nature of a suggestion to the
Government to exclude a particular category of people from consideration. Provisions
of statutory rules cannot be taken away by a suggestion of the executive until and
unless the rules are appropriately amended. N.K. Pankajakshan Nair v. P.V. Jayaraj,
2001(3) SLR 580 (SC): 2001(4) JT 406: 2001(2) KLT 141.
55. Promotion by Selection — In the case of a promotion by selection, the
merit and suitability of the officer in all respects to hold the promotional post in the
public interest, irrespective of his seniority is the primary factor. Seniority becomes
relevant only when the merit of the two or more eligible officers is found to be equal in
all respects and not otherwise. Vijayadevraj Urs v. G.V. Rao, 1982 (2) SLJ 399.
Where there is no statutory rule requiring D.P.C. to give its reasons for the
selection, the doctrine of speaking order be not extended to the selection. S.K.
Chandrika v. Union of India, 1982 (2) SLR 647: 1982 Lab IC 1688.
56. Promotion, Reasonable Classification for — There can be a reasonable
classification of employees for the purposes of appointment or promotion.
M.C.Srinivasan v. Collector of Central Excise, AIR 1970 Mysore 238; State of Kerala
v. N.M.Thomas, 1976 (1) SLR 805 (SC): AIR 1976 SC 490: 1976(1) SCR 906: 1976(2)
SCC 310.
57. Rules of Classification — The State is legitimately empowered to frame
rules of classification for securing the requisite standard of efficiency in services and
the classification need not be scientifically perfect or logically complete. Ganga Ram v.
Union of India, AIR 1970 SC 2178: 1970(3) SCR 481: 1970(1) SCC 377: 1970 SLR
755: (1970) 2 SCJ 584.
58. Promotion: Community-wise Unconstitutional — Distribution of
appointments, posts or promotions community-wise is contrary to the constitutional
156 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
guarantee under Articles 16(1) and (2) and is not saved by clause (4). Triloki Nath Tiku
v. State of J&K, 1969 SLR 748: (1969) 1 SCJ 306: AIR 1969 SC 1: 1969(1) SCR 103;
Makhanlal Waza v. State of J&K, 1971 (2) SLR 294: AIR 1971 SC 2206: 1971(3) SCR
832: 1971(1) SCC 749.
Reservation can be made not merely to initial recruitment but also to the posts
to which promotions are to be made. The reservation can also be provided for selection
posts as well as for non-selection posts. The reservation, however, is to be made
consistently with the maintenance of the efficiency of administration. If they are unfit
for post, they cannot claim to be appointed to the service despite reservation. The extent
of reservation to be made is primarily a matter for the State to decide. The reservation
must be only for the purpose of giving, adequate representation in the service to the
Scheduled Tribes and Backward Classes. The burden of establishing that a particular
reservation made by the State is offensive to Article 16(1) is on the person who takes
the plea. State of Punjab v. Hira Lal, (1971) 2 SCJ 471: AIR 1971 SC 1777: 1971(3)
SCR 267: 1970(3) SCC 567: 1971 (2) SLR 98; State of Kerala v. N.M.Thomas, 1976 (1)
SLR 805 (SC): AIR 1976 SC 490: 1976(1) SCR 906: 1976(2) SCC 310; Akhil Bhartiya
Soshit Karmchari Sangh (Railway) v. Union of India, 1981(2) SCR 185: AIR 1981 SC
298: 1981(1) SCC 246: 1980 Lab IC 1325 1980(3) SLR 645: 1981(1) LLN 27: 1980
SLJ 734: 1981 SCC (Lab) 50.
As per Article 16(4) which carves out a separate field for itself from the
general sweep of Article 16(1) which guarantees equality of opportunity in matters of
appointments in Government services to all citizens of India, the reservation for these
categories in employment has to be achieved by earmarking requisite percentage of
posts for the reserved category of candidates and by pitch forking these posts on roster
points on requisite points roster and when such a roster takes full cycle, posts
earmarked on reserved points will enable the requisite reserved category of candidates
to fill up these posts. After that is done, the roster would be treated to have achieved its
purpose. When posts in a cadre are to be filled in from two sources whether the
candidate comes from the source of departmental promotees or by way of direct
recruitment once both of them enter a common cadre their birth marks disappear and
they get completely integrated in the common cadre. This would be in consonance with
the thrust of Article 16(1) of the Constitution of India. No question of exception to the
said general thrust of the constitutional provision would survive as Article 16(4) would
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 157
be out of picture in such a case. State of Punjab v. R.N. Bhatnagar, 1999(2) SLR
552 (SC).
If the persons belonging to open class have reaped the benefit in a previous
year on account of non-availability of candidates belonging to Scheduled Castes and
Scheduled Tribes they cannot complain that during the subsequent year there was
discrimination or excessive reservation if more number of posts were made available to
the reserved category to compensate the vacancies which they had lost during the
previous year. T.S.Chandrasekhariah v. Coffee Board, 1982 Lab IC 391.
60. Temporary Exemption from Test for Promotion for Members of
Scheduled Castes and Scheduled Tribes — Rule providing an extended period of two
years to members of Scheduled Castes and Scheduled Tribes for passing the special test
for promotion does not violate Article 14 or Article 16(1) and (2). State of Kerala v.
N.M. Thomas, AIR 1976 SC 490: 1976(1) SCR 906: 1976(2) SCC 310: 1976 Lab IC
395: 1976 (1) SLR 805; Lakshman Prasad Sinha v. State of Bihar, 1979 (3) SLR 389.
61. Promotion or Demotion, Powers of Court — The power to promote an
officer belonging to the Executive and the judicial power may control or review
Government action but cannot extend to acting as if it were the Executive. The Court
may issue directions but leave it to the Executive to carry it out. The judiciary cannot
promote or demote officials but may demolish a bad order of Government or order
reconsideration on correct principles. State of Mysore v. C.R.Seshadri, 1974 SLJ 209:
AIR 1974 SC 460: 1974(3) SCR 87: 1974(4) SCC 308: (1975) 1 SCJ 64: 1974 (1)
SLR 407.
Promotion cannot be treated as a consequential relief per se when the court
itself had restricted the relief given to the petitioner to the “monetary benefits” and all
such benefits had been given to him. Chet Ram Sharma v. State of Haryana, 2001(3)
SLR 515 P&H.
Any promotions made wrongly in excess of any quota are to be treated as ad
hoc. This applies to reservation quota as much as it applies to direct recruits and
promotee cases. If a Court decides that in order only to remove hardship such roster
point promotees are not to face reversions, then it would be, necessary to hold —
consistent with interpretation of Articles 14 and 16(1) — that such promotees can not
plead for grant of any additional benefit of seniority flowing from a wrong application
of the roster. It was held that while Courts can relieve immediate hardship arising out of
a past illegality, Court cannot grant additional benefits like seniority which have no
element of immediate hardship. Ajit Singh v. State of Punjab, AIR 1999 SC 3471:
1999(7) SCC 209: 1999(7) JT 153: 1999 Lab IC 3128: 1999(4) LLN652: 1999(5)
SLR 268.
The High Court ought not to issue writs directing the State Government to
promote the aggrieved officers with retrospective effect. The correct procedure for the
High Court is to issue a writ to the State Government compelling it to perform its duty
and to consider whether having regard to his seniority and fitness the candidate should
have been promoted on the relevant date and so what consequential benefits should be
allowed to him. State of Mysore v. P.N. Nanjundiah, 1969(3) SCC 633: 1969 SLR 346
158 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
lower in seniority list see Siya Ram v. Union of India, AIR 1998 SC 1470: 1998(2) SCC
556: 1997(10) JT 149: 1997(6) SLR 624: 1998 Lab IC 885: (1998) 1 SCJ 260.
(ii) Statutory rules under Article 309 did not provide for test for promotion of
clerks to the post of assistant. Administrative instruction issued to include a
qualification test for promotion of clerks to assistants. Test could not be regarded as an
essential prerequisite for such promotion. P.C. Wadhwa v. Union of India, AIR 1964
SC 423: 1964(4) SCR 598: 1964(1) LLJ 395; State of Haryana v. Shamsher Jung
Shukla, 1968 SLR 162: 1968 Cur LJ 72; Mrs J.K. Pritam Singh v. State of Punjab, 1967
SLR 251; Lalit Mohan Dev v. Union of India, AIR 1970 Tripura 10; See other view in
Harjit Singh v. I.G.Police, Haryana, 1969 SLR 845: 1969 Cur LJ 966.
(iii) Under the rules on examination or test was provided before being
considered for promotion. Office order was issued prescribing test in order to guide the
making of promotions. The executive instructions are void as they amount to an
alteration of the rules prescribed. State of Haryana v. Shamsher Jung Bahadur, (1972) 1
SCWR 874: AIR 1972 SC 1546: 1973(1) SCR 249: 1972(2) SCC 188: 1972 SLR 441:
(1973) 2 SCJ 582; State of Punjab v. Madan Singh, (1972) SCWR 879: 1972 SLR 446:
AIR 1972 SC 1429: 1974(3) SCC 90: (1973) 1 SCJ 82.
(iv) Departmental examination could not be prescribed for promotion to the
next higher rank which was not there prior to the reorganization of the States.
Mohammad Bhakar v. V. Krishna Reddy, 1970 SLR 768 (SC); Lehna Singh v. Punjab
State, 1970 SLR 844: AIR 1971 Punjab 198; State of Mysore v. R. Basappa, 1980 (1)
SLR 845 (SC).
(v) An employee on failure to pass departmental examination may be reverted.
Prem Singh v. State of Punjab, 1980 (3) SLR 278.
(vi) An employee cannot be reverted for failure to pass the examination where
the examination is not held. State of Maharashtra v. Chandrakant Anant Kulkarni, AIR
1981 SC 1990: 1982(1) SCR 665: 1981(4) SCC 130: 1981 SCC (Lab) 562: 1981 (3)
SLR 326 (SC): 1981 (2) SLJ 280: 1982 (1) SLR 697.
66. Viva Voce, Written Test — (i) The adjustment of suitability by method of
viva voce is unsatisfactory. Janki Prasad Parimoo v. State of J&K, AIR 1973 SC 930:
1973(1) SCC 420: (1975) 2 SCJ 50: (1973) 3 SCR 236: 1973 (1) SLR 719; Parvez
Qadir v. Union of India, 1975 (1) SLR 4: 1975 SLJ 130. The selection based upon the
bare interview without laying down any objective criteria for the guidance of the
Selection Committee, appears to be clearly illegal. Dr Dhrubashankaran v. Osmania
University, 1980 SLJ 153. In B. W. Dhavan v. Union of India, 1973 SLJ 56, it was held
that written test is more appropriate to test the candidate objectively than a viva voce.
See also Siya Ram v. Union of India, AIR 1998 SC 1470: 1998(2) SCC 556: 1997(10)
JT 149: 1997(6) SLR 624: 1998 Lab IC 885: (1998) 1 SCJ 260.
(ii) However, by subsequent rulings it is now well recognized that while a
written examination assesses a candidate”s knowledge and intellectual ability, an
interview test is valuable to assess a candidate”s overall intellectual and personal
abilities. The weight to be given to the interview test should depend on the requirement
160 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
of the service to which recruitment is made. Lila Dhar v. State of Rajasthan, 1982(1)
SCR 320: 1981(4) SCC 159: AIR 1981 SC 1777: 1981 Lab IC 1515: 1981(3) SLR 56.
(iii) Fixing 50 percent marks in interview as minimum qualifying marks for
selection is unreasonable and hold (Public Service Commission was directed to revise
the list in accordance with proper criteria as indicated in the judgement). L.V. Ashara v.
Gujarat Public Service Commission, (1984) 3 SLR 411, paragraph 8, 13 and 14.
(iv) Unless there is a question of mala fides, court cannot go into questions put
by the Selection Committee at an interview and decide whether the questions were
proper. Javed Rasool Bhat v. State of J & K, (1984) 1 SLR 543, 549, para 5 (SC).
(v) It is not for the court to lay down whether an interview should be held at all,
or how many marks should be allotted for the interview test. Of course, the marks must
be minimum, so as to avoid charges of arbitrariness, but not necessarily always there
may be posts and appointments where the only proper method of selection may be an
interview. Javed Rasool Bhal v. State of J & K, (1984) 1 SLR 543, 553 para 8 (SC).
(vi) A selection made on the basis of the written test held for the purpose of
“short listing” followed by an oral test in the shape of interview held for assessing
several other relevant questions or equipment of the candidate, referred to in the “Note
on Interview” is perfectly valid and does not violate Article 14 of the Constitution. Dr
P.G. Reddy v. B. Laxman, (1983) 3 SLR 170, 181, 182 para 17 (AP).
(vii) Allotment of “block marks” (i.e. 100 marks to the entire interview) is not
itself illegal. Hanumanathappa H. v. Muniswamy, (1984) 3 SLR 778 (Kar) (DB).
(viii) Persons whose near relations are candidates at an interview should not
participate in the process of selection at an interview. Subhash Chander Sharma v. State
of Haryana, (1984) 1 SLR 165 (P&H) (DB) (Case Law reversed).
(ix) Interview cannot be allowed to play a dominant part (in the selection
process). If a candidate is disqualified for not getting marks in interview, the rule would
be void. Marks of interview and written test should be taken together. State Bank of
Travancore v. Soumini, (1983) 3 SLR 299, 300, 301 para 4 & 5 (Ker) (DB).
(x) A Public Service Commission is competent to hold a screening test for the
selection of candidates for being called for interview. Further, there is no discrimination
in requiring that those with post graduate qualifications or doctoral qualifications must
also take the test. (1983) 2 SLR 363, 369, 370 paras 16 & 17 (Raj) (DB).
Union of India v. N.R. Banerjee, AIR 1997 SC 3761: 1997(9) SCC 287: 1996(11) JT
605: 1997(1) SLR 751: 1997(2) SLJ 103
The right to be considered by the Departmental Promotion Committee is a
fundamental right guaranteed under Article 16 of the Constitution of India, provided a
person is eligible and is in the zone of consideration. Delhi Jal Board v. Mahinder
Singh, AIR 2000 SC 2767: 2000(7) SCC 210: 2000(2) LLJ 1604: 2000(5) SLR 274:
2000(4) LLN 560: 2000(87) FLR 130
The fact that the law permits the promoting authority to receive the law
assistance of an independent body or a departmental selection committee does not mean
that by appointing such a committee, the promoting authority can absolve itself of the
obligation of applying its mind to the case of promotion of persons by selection. The
ultimate application of mind to the selection must be by the promoting authority. N.
Sreenath v. State of Mysore, 1973 SLJ 41: 1972 SLR 449. For guidelines followed by
selection board for promotion and for challenge of selection without written test see
Siya Ram v. Union of India, AIR 1998 SC 1470: 1998(2) SCC 556: 1997(10) JT 149:
1997(6) SLR 624: 1998 Lab IC 885: (1998) 1 SCJ 260..
68. Selection Board or Promotion Committee, Members of — (i) Personal
bias: Where one of the members of selection board is also to be considered for
selection, the decision taken by the Board cannot be considered as having been taken
fairly and justly. Selection set aside. A.K. Kraipak v. Union of India, (1970) 1 SCJ 381:
(1969) 1 SCWR 1122: AIR 1970 SC 150: 1970(1) SCR 472: 1969(2) SCC 240; V.N.
Nadgir v. Union of India, 1970 SLR 134
(ii) No man shall be a judge in his own cause. Nageshwar Rao v. State of A.P.,
AIR 1959 SC 1376: 1960(1) SCR 580: 1960 SCJ 53. .
(iii) Likelihood of bias — When one of the members of the committee for
preparing the list of candidates for appointment to the Indian Administrative Service is
son-in-law of one of the candidates, the petitioners could have legitimately believed
there was a reasonable likelihood of bias in favour of father-in-law and to the detriment
of the petitioners, because of the presence of son-in-law on the committee. Select list
quashed. D.K. Khanna v. Union of India, 1973 SLJ 1345: AIR 1973 HP 3.
(iv) Mala fide of members — Every preference does not vitiate an action. If it is
rational and unaccompanied by considerations of personal interest, pecuniary or
otherwise, it would not vitiate a decision. For example, if a senior officer expresses
appreciation of the work of a junior in the Confidential Report, it would not amount to
bias nor would it preclude that senior officer from being part of the Departmental
Promotion Committee to consider such junior officer along with others for promotion.
G.N. Nayak v. Goa University, AIR 2002 SC 790: 2002(2) SCC 712
Where there is nothing to show the reporting officer and the reviewing
authority, who were responsible for the adverse confidential reports, were members of
the promotion committee or were in any event responsible for the appellant not having
been recommended, the selection cannot be said to have been done with any mala fide
object. R.L. Butail v. Union of India, (1970) II SCWR 561: 1970 SLR 926: (1971) 2
162 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
SCJ 566; Mala fides have to be proved by reliable legal cogent evidence. D.K. Gupta v.
Municipal Corporation, 1979 (3) SLR 416: 1978 SLJ 525.
69. Committee Not Validly Constituted — Screening committee which was
not validly constituted made recommendations to Public Service Commission. Public
Service Commission sanctioned the final list. Order set aside. Prithvi Raj v. State of
Punjab, 1969 Cur LJ 30; Kenahiah v. State Level Recruitment Committee, AIR 1966
Mysore 36; Jagdish Pandey v. The Chancellor, University of Bihar, AIR 1968 SC 353:
1968(1) SCR 231: 1968 SLR 252: (1968) 1 SCJ 799.
70. Delay in constitution of the committee — By merely failing to nominate a
member and not allowing the committee to meet, the Commission can”t be permitted to
defeat the rights of the candidate. Held that even retirement cannot be a ground for
refusing to consider the claim for promotion. The right to be considered had accrued in
the year 1994-95. It was further held that the wrong done to the petitioner can only be
remedied by one method viz. directing the respondents to do the needful on the
hypothesis that he was in service at the relevant time. If the petitioner is found suitable
for inclusion in the select list and if his turn for appointment comes against an available
post in the promotion quota, he will be deemed to have been promoted with effect from
the due date. Consequential reliefs shall ensure in accordance with the rules. Chaman
Lal Lakhanpal v. Union Public Service Commission, 1999(1) SLR 671 P&H (DB).
71. Promotion Committee Proceedings, Claim of Privilege — Claim of
privileges by Government under Section 123, Evidence Act unnecessarily invites
suspicion when disclosure will be to its benefit. The tendency is hardly consistent with
the open and democratic society that our Constitution is committed to build. Public
matters should be made open to public scrutiny and it is only in cases which involve
any danger to the security of the State that any documents should be withheld from the
Courts. Ram Gopal v. Union of India, 1972 SLR 258 (Delhi); N.S. Panda v. Union of
India, 1977 (2) SLR 589.
72. Promotion Committee, Disclosure of Proceedings of — The demand for
disclosure of proceedings was not entertained not being bona fide demand under the
circumstances of the case. R.L. Butail v. Union of India, (1970) II SCWR 561: 1970
SCR 926: (1971) 2 SCJ 566.
73. Promotion or Selection Committee Proceedings, Scrutiny or Review
of — High Court does not sit as a court of appeal on the deliberations and
recommendations of the D.P.C. Ram Gopal v. Union of India, 1972 SLR 258; D.K.
Gupta v. Municipal Corporation of Delhi, 1979 (3) SLR 416: 1978 SLJ 525; Union of
India v. Durga Dass, AIR 1978 SC 1132: 1979(1) SCC 59: 1978 Lab IC 966: 1978 (2)
SLR 108; G.C. Dhiman v. State of H.P., 1979 (1) SLR 533; B.S.R Sharma v. Food
Corporation of India, 1979 (3) SLR 495; Dr Mahendra Kumar Patni v. State of
Rajasthan, 1983 (1) SLR 12.
74. Promotion Committee took into Consideration, Confidential Reports
made by a Person who himself was in the Field for Promotion — The annual
confidential reports relating to others were initiated by an officer who himself was an
aspirant for promotion to a higher post along with them. It would not have been fair for
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 163
the D.P.C. to take into consideration such reports though they might have been revised
by the higher authorities. Dr S.P. Kapoor v. State of Himachal Pradesh, AIR 1981 SC
2181: 1982(1) SCR 1043: 1982 Lab IC 9: 1981(4) SCC 716: 1981 (3) SLR 220: 1982
Lab IC 9.
(ii) A contract between the employee and the Government for recovery of loss
or damage consequent of any act, omission or neglect on the part of the employee is not
against the rule of natural justice. State of Kerala v. M.C. Joseph, 1975 SLJ 605.
(iii) Government had to pay as rent to transporter as delivery of goods was not
taken in time and recovery was ordered from the pay of petitioner without considering
his explanation. If certain explanation is furnished in the reply to show cause, the same
has to be met with by passing a speaking order. Since the authority did not apply mind
at all and passed the impugned mechanical order, the same was quashed. Deep Chand
Sharma v. State of Haryana, 1981 (3) SLR 188.
(iv) The petitioner was served with a charge sheet alleging that at the time of
handing over charge by him, the stores were short to the tune of Rs 14,000. Petitioner
submitted explanation. The petitioner was held liable for the recovery of Rs 8,000. No
evidence was recorded nor any enquiry was held. Order passed was a non-speaking
order hence set aside. Nand Kishore v. State of Punjab, 1983 (1) SLJ 43.
Where permanent loss was caused to government by negligence of employee in
supervisory work and negligence was not a direct cause of loss, recovery of loss from
pay and retirement benefits as held excessive. Sudhir Kumar Das v. Union of India,
(1988) 7 SLR 615 (CAT Calcutta).
CLAUSE (iv)
Explanation (ii)
Withholding of Increments of Pay
83. Increment defined — An increment is granted to an employee in token of
his serving the employer satisfactorily for a period of one year. Haryana State Co-
operative Development Federation Ltd. v. Rajbir Singh, 1999(2) SLR 744 P&H (DB).
84. Advance Increment Discontinued — Government issued notification that
non-gazetted officers other than new recruits who will work regularly during the strike
period will be given an advance increment. Advance increment was given to persons
who became entitled to it. After some time order was reviewed and advance increment
discontinued. Order of discontinuance was held to be illegal and was vacated, as it had
adverse civil consequences and cannot be passed without hearing. Appukuttan Nair v.
State of Kerala, 1969 SLR 496 (FB). See also Prem Singh Verma v. Union of India,
1993 (2) SLR 108 (CAT New Delhi).
85. Increments, Discrimination — Petitioners were J.B.T. Teachers in the
Punjab Educational Service. They were promoted to the classical and vernacular cadres
as Punjab Teachers. Pay Scales of teachers were revised and “Gyanis” etc. were
allowed three advance increments. It was held that petitioners were also entitled to
three advance increments. Jagdish Chander v. State of Punjab, (1984) 1 SLR 441
(P & H).
Discrimination in the matter of stoppage of increment has also been frowned
upon. Delinquent with four other persons charged with beating and some of the charges
were proved but Disciplinary authority passed the order of dismissal of delinquent but
order of stoppage of five increments in respect of others. It was held that it is
166 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
undoubtedly open for the disciplinary authority to deal with the delinquency and once
charges are established to award appropriate punishment. But when the charges are
same and identical in relation to one and the same incident, then to deal with the
delinquents differently in the award of punishment, would be discriminatory. Held that
it was not open for the disciplinary authority to impose different punishments for
different delinquents for same charge. State of Uttar Pradesh v. Raj Pal Singh, 2001
Supp (1) JT 44: 2001(4) SLT 294.
86. Increment and Moral Turpitude — Before Government servant is found
guilty of a grave offence involving moral turpitude (intoxicating and disorderly
behaviour) detailed inquiry under Kerala Civil Services etc. Rules. Rule 16 is
necessary, even if the penalty imposed is a minor one. C Ramankutty Warriar v. State
of Kerala, (1983) 1 SLJ 1: (1983) 1 SLR 608 (Ker).
87. Increment is Earned as a Matter of Course Unless Withheld — (i) An
ordinary increment is earned as a matter of course even during disciplinary proceedings.
Fundamental Rule 24 provides: “An increment shall ordinarily be drawn as a matter of
course unless it is withheld. An increment may be withheld from a Government servant
by the Central Government or by any authority to whom the Central Government may
delegate this power under Rule 6, if his conduct has not been good or his work has not
been satisfactory. In ordering the withholding of an increment, the withholding
authority shall state the period for which it is withheld, and whether the postponement
shall have the effect of postponing future increments.” See also Jwala Prasad Singh v.
State of Bihar, 1973 (1) SLR 546; Brahm Dev Seth v. Union of India, 1974 (1) SLR
680: 1973 SLJ 961.
(ii) Withholding of Increment is a Penalty — The withholding of increment
is by itself a penalty and could be imposed on good cause and that a civil servant was
not liable to the increments being withheld merely because of the pendency of certain
proceedings against him. Bhagwan Swarup v. Municipal Corporation of Delhi, 1967
SLJ 160. See also Prem Singh Verma v. Union of India, 1993 (2) SLR 108 (CAT New
Delhi).
Explanation (iii)
Stoppage at the Efficiency Bar
95. Efficiency Bar, Crossing of — (i) Express order of appropriate authority is
necessary to allow civil servant to cross the efficiency bar. State of Mysore v. S.V.G.
Iyangar, 1970(2) SCR 159: 1969(2) SCC 703: (1969) II SCWR 496: 1969 SLR 711:
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 169
(1970) 2 SCJ 715; Brahm Dev Seth v. Union of India, 1974 (1) SLR 680: 1973 SLJ 961;
U.K. Narayanan v. State of M.P., 1975 SLJ 790: 1975 Lab IC 1173.
(ii) Fundamental Rule 25 provides:
“Where an efficiency bar is prescribed in a time-scale, the increment next
above the bar shall not be given to a Government servant without the specific sanction
of the authority empowered to withhold increments under Rule 24 of the relevant
disciplinary rules applicable to the Government servant or of any other authority whom
the President may by general or special order authorise in this behalf.”
Stoppage of an official at the efficiency bar is not a penalty requiring the issue
of notice. Rule 11, Explanation (ii), CCS (CCA) Rules expressly lays down that
stoppage of a Government servant at the time scale of pay on the ground of his
unfitness to cross the bar does not amount to penalty. A.Kanare v. Union of India, 1990
(2) ATJ 617 (Ahmedabad).
96. Stoppage at Efficiency Bar for Unfitness — Stoppage of a Government
servant at the Efficiency Bar in the time-scale of pay on ground of his unfitness to cross
the Bar is not a penalty under the Rules. The Civil servant is therefore not entitled any
show-cause notice nor to an opportunity of showing cause against the proposal not to
allow him to cross the Efficiency Bar. Dr Nazar Singh v. Punjab University, 1971 (2)
SLR 60 (Punjab); Brahm Dev Seth v. Union of India, 1974 (1) SLR 680: 1973 SLJ 961;
Ram Manoharlal Srivastva v. Chief Conservator of Forests, M.P. 1978 SLJ 191: 1978
(2) SLR 481.
97. Stoppage at Efficiency Bar for Adverse Remarks — The very words
“efficiency bar” connote that unless a person is efficient he should not be allowed to
progress further in terms of pay. Where the adverse remarks were communicated to the
respondent from time to time, order not allowing him to cross the efficiency bar was not
interfered with. Bansi Ram Sharma v. State of H.P., 1982 (1) SLJ 140: 1982 (1)
SLR 378.
On expunging of the adverse remarks the case to be reconsidered regarding
eligibility to cross the efficiency bar from the date he was entitled to C.S. Suryanarayana
v. Union of India, 1982 Lab IC 679: 1982 (1) SLR 465: 1982 (1) SLJ 198.
98. Stopping of the Crossing of Efficiency Bar for Unsatisfactory Work and
Inefficiency — An order was served on the appellant intimating him that he neither
showed interest in the work not applied himself sufficiently. Thereafter, by another
order he was informed that his work was found to be unsatisfactory and it was proposed
to withhold the grant of annual increment, which increment would have entitled him to
cross the efficiency bar and he was called upon to make representation against the
proposed order. The Government after considering the representation ordered stopping
him to cross the efficiency bar. Held, the appellant has been given an opportunity to
make a representation. He has made a representation and the Government has
considered the representation as well as his records. The conclusion that an officer”s
work is inefficient is based on his records as well as by the opinions formed by his
superiors. The inefficiency is something which cannot be concretised. Bhawani Shankar
170 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
Sharma v. Union of India, (1972) 1 SCWR 794: AIR 1972 SC 2595: 1974(3) SCC 9:
1973(1) SLR 1095: 1973 LIC 7.
(ii) Where there is no material on record to show as to why the petitioner was
not allowed to cross the first efficiency bar with effect from the date of confirmation, he
is entitled to an order in his favour. Jwala Prasad Singh v. State of Bihar, 1973 (1)
SLR 546.
(ii) Adverse report not construed as deterrent for crossing the efficiency bar is
not obliterated and can be taken into consideration for negativing the claim for
promotion. S.S.S.Venkatrao v. State of Orissa, 1974 (2) SLR 899: 1975 SLJ 266 (FB);
Jaswant Singh Brar v. State of Punjab, 1975 (1) SLR 899; Ram Singh Kalson v. State of
Haryana, 1978 (1) SLR 450; Ramesh Prasad Mahapatra v. State of Orissa, 1979 SLJ
366: 1980 (2) SLR 417 (FB).
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 171
RULE 11
MAJOR PENALTIES
CLAUSES (v) & (vi)
EXPLANATION (iv), (v) & (vi)
Reduction to Lower Stage in Time-scale of pay
Reduction to Lower Grade, Post or Service
Postponement of Future Increments
Reversion
Replacement of Services of Borrowed Servants
SYNOPSIS
Reduction to Lower Stage in Time-scale of Pay
1. Reduction in rank as understood for purposes of Art. 311 (2) ....................................... 173
2. Disconfirmation, whether reduction in rank .................................................................. 173
3. Non-promotion, no reduction in rank ............................................................................ 173
4. Reversion, no reduction in rank .................................................................................... 173
5. Transfer, no reduction in rank ....................................................................................... 174
6. Transfer or removal from post of head of department ................................................... 174
7. Reduction in rank with stigma must follow procedure of Art. 311(2) ........................... 174
8. Reduction in pay-scale .................................................................................................. 175
9. Authority under Payment of Wages Act, 1936............................................................... 175
Reduction to Lower Grade, Post or Service
10. Reduction to a lower rank than initial recruitment ........................................................ 175
11. Lower scale post offered on medical unfitness .............................................................. 175
Postponement of Future Increments
12. Postponement of future increments . .............................................................................. 176
Reversion
13. Effect of reversion .......................................................................................................... 176
14. High Court posted A.D.J. as S.S.J. without order of reversion, by State Government .. 176
15. Reversion as a result of adverse entries in service record ............................................. 176
16. Reversion for administrative reasons ............................................................................ 176
17. Reversion for Collateral or extraneous purpose ............................................................ 177
18. Reversion for failing to pass departmental examination ................................................ 177
19. Reversion for not qualifying test prescribed after promotion ........................................ 177
172 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
informed of the charges against him and given a reasonable opportunity of being heard
in respect of those charges. So long as a final decision is not taken in the matter, the
enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary
Authority does not bring about the closure of the enquiry proceedings. The enquiry
proceedings would come to an end only when the findings have been considered by the
Disciplinary Authority and the charges are either held to be not proved or found to be
proved and in that event punishment is inflicted upon the delinquent. That being so, the
“right to be heard” would be available to the delinquent upto the final stage. This right
being a constitutional right of the employee cannot be taken away by any legislative
enactment or Service Rule including Rules made under Article 309 of the Constitution.
Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739:
1999 (83) FLR 534: 2000 (96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000 (1)
LLN 39
8. Reduction in Pay-scale — Government has authority to change the
designation but in this guise not to revise the pay-scale to the detriment of incumbent of
that post who was a confirmed hard working on that post. That would amount to
reduction in rank which could not be done without complying with the requirements of
Art.311(2). P.C.Saxena v. State Government of U.P., 1970 SLR 112. See also P.V.
Srinivasa Sastry v. Comptroller and Auditor General , (1979) 3 SLR 509 (Kar); Nyadar
Singh v. Union of India; M.J. Ninama v. The Post Master General, Gujarat, (1988) 4
SLR 271.
If service of a public servant is extended on the same terms no reduction in
pay-scale can be made by subsequent letter. C.L.Jangra v. Director of Public
Instruction, 1982 (2) SLR 272.
9. Authority under Payment of Wages Act, 1936 — Disciplinary orders of
punishment was passed reducing the pay to the minimum stage of time scale. Held that
authority constituted under section 15 of the Payment of Wages Act, 1936 has no
jurisdiction to interfere with the orders passed under the disciplinary proceedings. State
of Punjab v. Baldev Singh, 1998(9) SCC 325: 1998(8) JT 423(1): 1999(1) LLJ 254:
1999(1) LLN 18: 1999(81) FLR 303.
Reduction to Lower Grade, Post or Service
10. Reduction to a Lower Rank than Initial Recruitment — Punishment
imposable in a disciplinary action could not be of reversion to a rank lower than the
initial recruitment itself. Babaji Charan Rout v. State of Orissa, (1982) 1 SLJ 496:
(1981) 3 SLR 189: 1982 Lab IC 603.
But Andhra Pradesh view is that even where an employee is directly recruited
to a particular post, a disciplinary authority is competent to impose the penalty of
reduction to a lower post. Mahendra Kumar v. Union of India, (1983) 3 SLR 319 (AP).
11. Lower Scale Post Offered on Medical Un-fitness — Normally an
employee who is medically unfit for service would be invalidated or discharged.
Appellant who was an Engine Driver having been found medically unfit for the post
was offered the post of Pump Engine Driver for which he was found medically fit.
Scale of pay for this post is lower than the scale of pay of Engine Driver. In these
176 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
circumstances it can hardly be said that he was either punished or reduced in rank.
Mohammad Sagiruddin v. Divisional Mechanical Engineer, N.F. Rly, 1973 SLJ 553:
1973 (1) SLR 1098: AIR 1973 SC 1306: 1973(4) SCC 133: 1973 Lab IC 877.
Postponement of Future Increments
12. Postponement of Future Increments — Where the petitioner was ordered
to suffer three increments having the effect of the postponement of his future
increments, held, if the effect of the order is the reduction of petitioner to a lower stage,
in the time- scale, it means the imposition of a major penalty and the imposition of such
a penalty contrary to rules framed under the proviso to Article 309 of Constitution is
liable to be quashed. C. Veera Chowdaiah v. State of Mysore, 1973 (1) SLR 241: 1973
SLJ 700.
Reversion
13. Effect of reversion — The relationship of master and servant between the
employee and the employer continues in case of reversion. Public Services Tribunal
Bar Association, State of U.P., 2003 (4) SCC 104.
14. High Court Posted ADJ as SSJ without Order of Reversion by State
Govt. — High Court requested the State Government to revert the petitioner from the
post of Additional District and Sessions Judge. Although no order of reversion was
passed by the State Government, High Court directed the petitioner to hand over charge
as Additional District and Sessions Judge and posted him as Senior Subordinate Judge.
Held, the order was in excess of powers and therefore invalid. A.N.Bhoil v. Union of
India, 1973 (2) SLR 726; Barada Kanta Misra v. High Court of Orissa, AIR 1976 SC
1899: 1976 Supp SCR 1046: 411: 1978 HLR 473: 1976 SLJ 529: 1976 Lab IC 1202:
(1977) 1 SCJ 172.
15. Reversion as a Result of Adverse Entries in Service Record — Order of
reversion as a result of adverse entries in service record attracts the provisions of
Art.311. Satish Chandra Mital v. State of U.P., 1975 (1) SLR 65; Santosh Kumar
Mahapatra v. State of Orissa, 1975 Lab IC 1464; Union of India v. S.B.Chatterjee,
1980 (2) SLR 365; Dulal Kumar Mazumdar v. State of West Bengal, 1981 (2) SLR 780.
Rattan Singh v. Union of India, (1990) 7 SLR 548.
Petitioner”s name was removed from the promotion list (Punjab Police Rules)
without show cause notice and was reverted from officiating post. Adverse remark of
drunkeness was made around him during the same period. Reversion was held penal and
illegal without show cause notice. Deep Chand v. State of Haryana, (1983) 1 SLR 158
(P&H).
16. Reversion for Administrative Reasons — The reversion of a probationer
or a person appointed on a post temporarily may be either in the ordinary course for
administrative reasons in accordance with the rules of service or it may be as a measure
of punishment. Where it is ordered as a measure of punishment, Art 311 will be
attracted and not otherwise. Shrikrishna Agarwal v. State of M.P., AIR 1970 MP 162.
G. Venugopal v. Director of Administrator Appellate Authority, 1993 (4) SLR 81 (CAT
Hyderabad); M.K. Jain v. Rajasthan Financial Corporation, (1986) 1 SLR 95 (Raj).
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 177
punishment nor reduction in rank. State of Bombay v. P.A. Abraham, AIR 1962 SC 794:
1962 Supp(2) SCR 92: (1962) 2 SCJ 1683; Jagdish Mitter v. Union of India, AIR 1964
SC 449: 1964(1) LLJ 418; Champak Lal Chiman Lal Shah v. Union of India, AIR 1964
SC 1854: (1964) 5 SCR 190: 1964(1) LLJ 752; S.K. Das Gupta v. O.N.G. Commission,
AIR 1970 Gujarat 149; Secretary to Govt. of West Bengal v. Ram Chandra Chaudhury,
AIR 1973 Cal. 222; S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2)
SCR 184: 1976(1) SCC 236: 1975 (2) SLR 740: 1976 SLJ 271; H. Krishnamurthy v.
State of Karnataka, 1981 (1) SLJ 590: 1982 Lab IC 397.
(iii) Unsuitability for the job may arise out of a number of
circumstances which may or may not include his efficiency, his conduct or his
desirability for the post concerned. The word “unsuitable” is a very wide word which
takes in other cases than cases of inefficiency, undesirability, unsatisfactory conduct
etc. That being so, it cannot be held that if a Government servant is found unsuitable for
a job, any stigma is cast upon him. Syed Abbas Hussain Nagri v. State of A. P., AIR
1971 AP 1 (FB) : 1971 Lab IC 30.
(iv) Reversion for inefficiency. Order casts stigma. Lakshman Swaroop Sharma
v. State of U.P., 1975 (1) SLR 200: 1975 Lab IC 34.
25. Reversion on Abolition of Post — Petitioner was appointed to a temporary
post temporarily. Post was made permanent but subsequently it was abolished.
Petitioner was reverted to his substantive post. Held, he was not removed from service
by way of penalty and Art. 311 does not apply. Government is fully entitled either to
create or abolish a post. Gian Chand Jain v. State of Haryana, 1968 SLR 752. See also
Amanulla v. Union of India, (1989) 7 SLR 658 (CAT Cal.). See also Mahesh Kumar
Mudgil v. State of Uttar Pradesh (1998) 1 SCJ 266.
Appellant was reverted to his parent department to a non-gazetted post. He did
not join the post on the plea that although he had become quite senior in his parent
department, he was reverted to a non-gazetted post. If the appellant had cared to join
there, it would have been open to him to make a representation for his appointment on a
proper post with due regard to his seniority and service record. If he did not do so, and
stayed away from his parent department, it is not open to him to argue that he was not
given a proper post there. Kedar Nath Bahl v. State of Punjab, AIR 1979 SC 220: 1979(1)
SCR 1089: 1978(4) SCC 336: 1979(1) SLR 288: 1979 SLJ 105: 1978 Lab IC 1765.
The legal position is settled beyond dispute now that even in Government
establishments when retrenchment has to be made, the practice of retrenching the junior
officers first has to be done. Biswamitra Agasti v. State of Orissa, 1982 Lab IC 473.
26. Reversion Before Fixed Term — Where temporary appointment to
officiate in a post for a fixed term was made, it was held that reversion before the date
fixed was premature termination and illegal. Prasanta Mahapatra v. State of Orissa,
AIR 1969 Orissa 61; see other view in Fateh Singh Chuga v. State of Punjab, AIR 1970
P & H 315; Bhagwan Dass v. State of Punjab, 1967 SLR 240 (Punjab). State is not
competent to cancel the selection with the provisions of Art. 311(2) of the Constitution.
P. Viswanathan v. Post Master General, A.P., 1983 (1) SLJ 58.
180 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
occupying the post of S.O.S., the post having been filled by another officer approved by
U.P.S.C. Order of reversion upheld. Naresh Chandra Saha v. Union Territory, Tripura, AIR
1970 SC 364: 1970(2) SCR 639: 1969(3) SCC 22: 1969 SLR 839: (1971) 2 SCJ 520.
(ii) Petitioners were reverted to the posts of senior clerks retrospectively with
effect from the date on which they were promoted as assistants. Held, impugned order
would not have amounted to a penalty, if thereby petitioners had been reduced in rank
prospectively, it entailed penal consequences because of its retrospective operation.
Sarwan Singh v. Union of India, AIR 1960 HP 24.
(iii) No retrospective reversion can be ordered. R. Jeevaratnam v. State of
Madras, 1967 SLR 657; Ram Singh v. State of Punjab, 1982 (1) SLR 892. K.V.
Donnikrishan Nair v. Director General, C.S.I.R. (1988) 7 SLR 684 (CAT)
(Earnakulam); J.S. Brah v. Central Warehousing Corp., 1997 (1) SLR 549 (MP).
32. Reversion Order – Indication of Reason Therein — The mere indication
of the reason in the order of reversion cannot amount to punishment. N. Subramaniam
v. D.P.O., S.E. Rly., AIR 1970 Orissa 12.
If the reasons are disclosed, then it is said that the order of the Government was
passed by way of punishment. If it does not disclose the reasons, then the argument is
that it is arbitrary and violative of Art. 16. You have to look to the order on the face of
it to find out whether it casts any stigma on the Government servant. State of
Maharashtra v. V.R. Saboji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466:
1979 Lab IC 1389: 1979 (2) SLR 527: 1979 SLJ 621.
33. Reversion Order Whether by Way of Punishment — (i) An order passed
maliciously or on collateral considerations on which involves penal consequences, or
denied to the civil servant, the guarantee of the Constitution or of the rules governing
his employment, is always open to challenge by appropriate proceedings as having been
passed by way of punishment. Jagdish Prasad Shastri v. State of U.P., (1970) II SCWR
723: 1970 SLR 938: AIR 1971 SC 1224: 1971(2) SCR 583: 1970(3) SCC 631: (1971) 2
SCJ 409. See also G. Venugopal v. Director of Administrator Appellate Authority, 1993
(4) SLR 81 (CAT Hyderabad).
(ii) Whether a particular order of reversion amounts to reduction in rank by
way of punishment cannot be decided merely on the basis of the terms of the order but
regard must be had to be the attendant circumstances also. Appar Apar Singh v. State of
Punjab, (1971) I SCWR 226: 1971 SLR 71: (1971) 2 SCR 890: 1970(3) SCC 338:
(1971) 2 SCJ 566: 1970(2) LLJ 686.
(iii) In Regional Manager v. Pawan Kumar, AIR 1976 SC 1766: 1976(3) SCR
540: 1976(3) SCC 334: 1976 Lab IC 1146: 1976 SLJ 387: 1976 (2) SLR 44 Supreme
Court held that sudden reversion for the reason that respondent was “not fit yet” in the
reversion order could be held to amount to an unjustified stigma which could not be
said to be devoid of an element of punishment.
34. Reversion When by Way of Punishment — If the reversion involves
penal consequences or in the order of reversion there is anything which would effect his
future promotion or if the civil servant has right to a particular rank, then the very
182 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
reduction from rank will operate as a penalty. P.L. Dhingra v. Union of India, AIR
1958 SC 36: 1959 SCR 828: 1958 SCJ 217: 1958(1) LLJ 544; Madhavo Laxman v.
State of Mysore (1962) 1 SCJ 134: AIR 1962 SC 8: 1962(1) SCR 886; Ram Chandra
Chaudhri v. Secretary to Govt. of West Bengal, AIR 1964 Cal 265; Amrit Rao
Kamerikar v. State of M.P., 1970 SLR 577; K.H. Phadnis v. State of Maharashtra, AIR
1971 SC 998: 1971 Supp SCR 118: 1971(1) SCR 790: 1971(2) SLR 345: (1973) 1 SCJ 420.
No reasons whatsoever were assigned in the impugned orders of reversion. The
aggrieved employees officiating in higher posts were not even stated to be unsuitable in
higher posts. It cannot be contended that all the employees reverted from officiating
higher posts were suddenly found unsuitable without reference to their conduct during
the strike period. The irresistible inference is that the petitioners were reverted from
officiating higher posts to their substantive lower posts by way of punishment as they
absented from duties during the period of strike. S. N. Nagarajulu v. Railway Board,
1982 (2) SLJ 13: 1981 (3) SLR 305.
35. Reversion – Application of Art. 311 — The real test in cases of reversion
is to ascertain whether the officer concerned has a right to the post from which he is
reverted. If he has a right to the post then reversion is punishment and cannot be
ordered except in compliance with the provisions of Art. 311. If on the other hand he
has no right to the post, he can be reverted without attracting the provisions of Art. 311,
but the intention must not be to punish him or cast a stigma on the officer. State of U.P.
v. Sughar Singh, (1974) II SCWR 80: (1975) 1 SCJ 12: 1971 (1) SLR 435: 1974 SLJ
474; G.S. Gill v. State of Punjab, 1975 SLJ 167: 1974 (2) SLR 543; V.K. Singh (Mrs) v.
State of M.P., 1975 SLJ 60. See also Chandi Das Banerjee v. Union of India, (1990) 13
ATC 551 (Cal): (1990) 2 ATJ 278.
The order upgrading the posts does not show that the upgrading was of a
temporary character nor does the order promoting the respondents to the said posts
show that the promotion was on an officiating basis. It was not shown that any rule
prescribed that the promotion of an employee to the said posts shall initially be on an
officiating basis. The promotion, therefore, was on permanent basis and if that be so the
reversion of respondents must be held violative of Article 311 clause (2) of the
Constitution. Union of India v. Jagdish Prasad, AIR 1982 SC 773: 1982(1) SCC 421:
1982 Lab IC 441: 1982 (2) SLJ 7.
36. Natural Justice: Before reverting an employee as a result of
representations received from other employees rules of natural justice must be
observed. Jatinder Pal v. State of Punjab, (1983) 1 SLR 551 (P&H). See also Pooran
Chand v. Municipal Committee, (1989) 1 SLR 210 (P&H), S. Sthiah v. Secretary, Min.
of Railways, (1991) 2 SLR 205 (CAT Madras); Ishwarlal G. Vyas v. Union of India,
(1990) 3 SLR 177 (CAT Ahmedabad). Reversion without giving opportunity of hearing
is bad in law. B.N. Malhotra v. State of Haryana, 2003 (1) SLR 366 P&H; Kasturi Lal
Kashyap v. State of Punjab, 2002 (6) SLR 131 P&H; Dharampal v. State of Haryana,
2001 (6) SLR 315 P&H (DB).
37. Reversion: Likely Impact on Promotion — Where reversion of an
Inspector of Police to the post of sub-Inspector alongwith removal of his name from list
F is ordered, opportunity of hearing should be given before the order is passed as it
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 183
disentitled the employee from being considered for promotion. However, mere
reversion in itself does not attract Article 311(2) of the Constitution. Richhapal Singh v.
I.G.P., Haryana, (1983) 1 SLR 399 (P&H). Bimalesh Kumar Chakraborty v. Union of
India, (1988) 7 SLR 193 (CAT Cal.); Prakash Lal v. Superintendent of Police, (1989) 7
SLR 571 (HP AT); Varinder Kumar v. State of Punjab, (1988) 1 SLR 435 (P&H).
38. Reversion Order : Test for Attracting Art. 311(2) — The test for
attracting Article 311(2) of the Constitution is whether the misconduct or negligence is
a mere motive for the order of reversion or termination of service, or whether it is the
very foundation of termination of service of the temporary employee. Champaklal
Chimanlal Shah v. Union of India, (1964) 5 SCR 190: AIR 1964 SC 1854: 1964(5) SCR 190.
The undesirable conduct on the part of respondent might have been the motive
for reverting him to his old post, such reversion cannot be termed as penalty or
punishment. Oil and Natural Gas Commission v. Dr. Md. S.Iskander Ali, AIR 1980 SC
1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 SLJ 591: 1980 (2)
SLR 792; Union of India v. P.S. Bhatt, 1981(2) SCC 761: AIR 1981 SC 957: 1981 Lab
IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981 SCC (Lab) 460: 1981(2) SCJ 65:
1981(2) SCWR 88.
The Supreme Court has taken the view that if the very foundation of the order
of reversion is the misconduct or negligence then Art.311(2) is attracted, but if the
misconduct or negligence is mere motive and not the foundation, then Art.311(2) will
have no application. Union of India v. S.B. Chatterjee, 1980 (2) SLR 365; Ram Kishore
Tiwari v. High Court of Judicature, M.P., 1981 (2) SLR 47.
The petitioner was accused of gross misconduct which calls for punishment
after disciplinary action. The mere fact that disciplinary proceedings were not held are
not sufficient to hold that the impugned order of reversion is not punitive. Smt. Maria
T.S. da Moraise Almeida v. Union of India, 1982 (1) SLJ 136.
39. Reversion : Junior Allowed to Continue — The respondent was reverted
when at least 200 other officers who were junior to him in substantive cadre. That
would make the order liable to be struck down as violative of Art.16 of the
Constitution. Reference may be made to State of Mysore v. P.R. Kulkarni, 1970 SLR
795: AIR 1972 SC 2170: 1973(3) SCC 597: 1972 Lab IC 1280 wherein order of
reversion was struck down by Supreme Court on the ground of “unjustifiable
discrimination”. Order set aside having been passed by way of punishment. State of
U.P. v. Sughar Singh, 1974 (1) SLR 435: 1974 SLJ 474: AIR 1974 SC 423: 1974(2)
SCR 335: 1974(1) SCC 218: (1975) 1 SCJ 12; Lt. Governor of Delhi v. Dalip Singh,
1976 (2) SLR 156.
The petitioner was promoted as Naib Tehsildar. He challenged the reversion on
the ground that six of the respondents were junior to him who were working as Naib
Tehsildar. The reply of the State was that the said six respondents had qualified the
prescribed test for becoming Naib Tehsildar candidate whereas the petitioner failed to
pass the test. Held, the petitioner was rightly reverted. Darshan Singh v. State of
Punjab, 1980 (3) SLR 345. Also, see Notes 34 & 35.
184 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
When similarly rather worst situated i.e. illiterate candidates were continuing,
reversion of the petitioner was held to be not proper. Laxmi Chand v. Haryana Vidyut
Prashan Nigam Ltd., 2002 (2) SLR 637 SC.
40. First Come Last Go — The reversion should be in the order of their
seniority on the principle “first come last go”. Sudershan Sood v. State of Punjab, 1969
Cur LJ 846: 1969 SLR 715; Hari Kishan Lal Chopra v. State of Punjab, 1974 SLJ 1;
Biswamitra Agasti v. State of Orissa, 1982 Lab IC 473.
A Division Bench of Delhi High Court held, “It is well settled that if there are a
number of posts in a cadre and some of the posts are abolished, it is not the incumbent
of the post which is abolished who is liable to be reverted, but the axe would ordinarily
fall on the junior most in the cadre. This is so because the rule of “Last come must first
go” does not strictly apply to the service under the State and even though ordinarily the
State may follow such a wholesome to practice may, for good reasons, decide to retain
the junior most in preference to the comparative senior one if there are valid
administrative grounds, such as competence, record of service, etc. which may justify
such a departure. Kuldeep Chand Sharma v. Delhi Administration, 1978 SLJ 461: 1978
(2) SLR 379.
41. Reversion with Stigma — (i) Respondent who was a Head Assistant was
promoted as A.E.T.O. He was suspended and charge sheet was served on him.
Respondent filed reply. He was given another show cause notice as to why he should
not be reverted to his previous post. Respondent made reply to the show cause. He was
reverted to his substantive post. It is not a case of preliminary enquiry. It is a case in
which a formal enquiry was ordered and after the respondent had given reply to the
charges, the enquiry was then dropped, and he was reverted. It is evident that he was reverted.
(ii) Where the order clearly states that the appellant was found totally
inefficient for this post and for that reason he was being reverted, the order casts a
stigma of inefficiency on the appellant. The order is illegal. Lakshman Swaroop Sharma
v. State of U.P., 1975 (1) SLR 200: 1975 Lab IC 34.
(iii) In State of U.P. v. Virendra Nath Srivastava, 1969 ALJ 1039: 1970 SLR
48, it was held that sudden reversion of the respondents to their lower substantive posts
while allowing their juniors to officiate in higher posts, casts an aspersion on their
professional ability and previous record of service and without giving opportunity to
show cause was in violation of Article 311. Supreme Court in Regional Manager v.
Pawan Kumar Dubey, AIR 1976 SC 1766: 1976(3) SCR 540: 1976(3) SCC 334: 1976
SLJ 387: 1976 (2) SLR 44, held that sudden reversion for the reason that the
respondents were “not fit yet” in the reversion order, could be held to amount to an
unjustified stigma which could not be said to be “devoid of an element of punishment”.
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 185
The reversion order was quashed and the authorities were directed to consider case of
respondent on merits along with others who may be eligible to officiate in the post.
42. Reversion Without Stigma, Motive of Order — (i) The order of reversion
contained no adverse remarks against the appellant nor can it be said that any stigma
attaches to him because of the order. If the authorities came to the conclusion that
pending the holding of an open enquiry into the charges of corruption against him, he
should not be allowed to officiate in a higher post, it cannot be inferred therefrom that
the reversion was by way of punishment. The existence of such a motive cannot vitiate
the order of reversion. R.S. Sial v. State of U.P., (1974) 2 SCJ 333: 1974 (1) SLR 827:
(1974) 1 SCWR 749: AIR 1974 SC 1317: 1974(3) SCR 754: 1975(3) SCC 111: 1974
SLJ 396.
(ii) Where the order of reversion in case of a person who had no right to the
post, does not show ex facie that he was being reverted as a measure of punishment or
does not cast any stigma on him, the Court will not normally go behind that order to see
if there were any motivating factors behind that order. S.P. Vasudeva v. State of
Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 (2) SLR 740:
1976 SLJ 271: 1975 Lab IC 1748.
(iii) The petitioner, a Sub Divisional Engineer was promoted as an Executive
Engineer and put on probation. He was reverted by the impugned order which is
innocuous. In the written statement the State took a definite stand that during the period
petitioner was officiating as Executive Engineer his integrity was found doubtful and
the order of reversion had been passed after considering the confidential reports earned
by the petitioner during the first two years of his probation period. Held, when the
motive of the order was punishment, it could not be passed without following the
provisions of Art. 311(2) and cannot be upheld. O.P.Behl v. State of Haryana, 1981 (1)
SLR 96.
43. Reversion Order, Form of Order not Conclusive of its Nature — It may
be that an order which is innocuous on the face and does not contain any imputation of
misconduct is a circumstance or a piece of evidence for finding whether it was made by
way of punishment or administrative routine. But the entirety of circumstances
preceding or attendant on the impugned order must be examined and the overriding test
will always be whether the misconduct is a mere motive or is the very foundation of the
order. If the order is made by way of punishment, provisions of Art. 311(2) have to be
complied with. State of Bihar v. Shiv Bhikshuk Mishra, (1970) II SCWR 606: (1971) 2
SCJ 68: AIR 1971 SC 1011: 1971(2) SCR 191: 1970(2) SCC 871: 1970 SLR 863;
Appar Apar Singh v. State of Punjab, (1971) 1 SCWR 226: (1971) 2 SCJ 566: 1971
SLR 71; Kalam Das v. Chief Electoral Officer, 1972 Simla LJ 406: AIR 1972 HP 131.
44. Reinstated and Reverted — Appellant suspended and thereafter
dismissed. Orders set aside by Court. Appellant reinstated in the post and by the same
order reverted to his substantive post, the post in which he was officiating having been
filled by another officer approved by U.P.S.C. Order held valid. Naresh Chandra Saha
v. Union Territory of Tripura, AIR 1970 SC 364:1970(2) SCR 639: 1969(3) SCC 22:
1969 SLR 839: (1971) 2 SCJ 520.
186 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
396: (1974) 2 SCJ 333; State of Maharashtra v. V.G. Koppar, AIR 1981 Bom 131. See
also M. Venkatanarayan v. General Manager, South Central Railway, (1983) 3 SLR
486 (AP); Giridhari Behera v. State of Orissa, 1990 (2) SLJ 225 (CAT Bhubaneswar).
58. Reversion of Employee Appointed on Ad hoc Basis — Reversion of an
employee appointed/promoted purely on ad hoc basis will not attract Article 311 where
the order of reversion ex facie does not show that he was being reverted as a measure of
punishment or the order casts any stigma on him. The court will not normally go behind
the order to see if there was any motivating factor behind that order. S.P. Vasudeva v.
State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 Lab
IC 1748: 1976 SLJ 271: 1975 (2) SLR 740; Braij Nath Rai v. Union of India, 1976 (2)
SLR 425; Satyadeo Singh v. State of Bihar, 1981 (3) SLR 671. See also Lingraj
Tripathy v. State of Orissa, (1984) 2 SLR 569 (Orissa) (DB); Balkrishna Oza v. State of
Gujarat, 1997 (4) SLR 94 (Gujarat).
59. Challenge to proposed reversion — Challenge to a show cause notice
proposing to revert the candidates. The candidates entitled to give reply to show cause
and represent their case. It was held that the challenge to show cause at this stage by
writ petition was premature. Bhup Singh v. State of Haryana, 2002 (6) SLR 353 P&H
(DB)
A challenge to the order of reversion made after 8 years of passing of order
held to be highly belated especially in view of the fact that the candidate was a mere
probationer. Jai Prakash Gupta v. Board of Education, Haryana, 2001 (5) SLR 704
P&H (DB).
MAJOR PENALTIES
Clause (vii)
Explanation, (vii)
Compulsory Retirement
Superannuation
SYNOPSIS
1. Compulsory retirement ... ............................................................................................... 190
2. Object of compulsory retirement ... ................................................................................ 191
3. Application of Article 16 of Constitution ... ................................................................... 191
4. Application of Article 311 (2) of Constitution ... ........................................................... 191
5. Compulsory retirement simpliciter ... ............................................................................. 192
6. General order for compulsory retirement ... ................................................................... 192
7. Fundamental Rule 56: Age of retirement of Central Civil Servants ... ........................... 192
Fundamental Rule 56 (a)
8. Compulsory retirement before attaining the age of superannuation ... ........................... 195
9. Retirement age ... ........................................................................................................... 195
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 189
shall not amount to a penalty. The penalty of compulsory retirement can only be
imposed by following the procedure prescribed in these Rules and complying with the
provisions contained in Article 311(2) of the Constitution. Compulsory retirement
according to service rules as contained in Fundamental Rule 56 does not amount to
dismissal or removal and does not involve civil consequences.
2. Object of Compulsory Retirement — The object of premature retirement is to
see that the inefficient and incorrect persons are removed, but no sufficient material is
available to dismiss or remove them from the Government service after enquiry, and as such,
they are weeded out from service with a view to secure efficiency in public service and to
maintain honesty and integrity amongst the service persons. However, while taking a decision
to retire a Government employee, prematurely from the service, the Government has to
consider the entire record of the Government servant including the latest reports. K.I. Patel v.
M.N. Vaishnava, Chief Conservator of Forest, 1999(1) SLR 646 Guj.
The object and purpose of the rule of compulsory retirement have been
considered in series of decisions by the Supreme Court. The object of compulsory
retirement is only to remove such personnel from the Government service, who is found
lax, corrupt and inefficient or not up to the mark or has out-lived his utility and the
object or compulsory retirement is not to victimise the service personnel. Bahadur
Singh v. State of Rajasthan, 1981 (2) SLR 582 (Raj); Kartar Singh v. Punjab State,
1982 (1) SLR 307.
For compulsory retirement in public interest see State of Madhya Pradesh v.
Indra Sen Jain, AIR 1998 SC 982: 1998(1) SCC 451: 1997(9) JT 230: 1998(1) SLR 67:
(1998) 1 SCJ 305. See also Ram Pravesh Shrama v. Coal Mines Provident Fund
Orgnization, Delhi, 2004 (6) SLR 795 (Jharkhand)
3. Application of Article 16 of Constitution — Article 16 does not prohibit
the prescription of reasonable rules for compulsory retirement. T.C. Shivcharana Singh
v. State of Mysore, AIR 1965 SC 280: 1967(2) LLJ 246: 1967(15) FLR 224; P.
Radhakrishna v. Government of A.P., 1977 SLJ 211: 1977 (1) SLR 258: AIR 1977 SC
854: 1977(2) SCR 365: 1977(1) SCC 561: 1977 Lab IC 537.
4. Application of Article 311 (2) of Constitution — Article 311 deals with
termination of service. There are two exceptions to the protection afforded by Article
311 (2). First, where a permanent public servant is asked to retire on the ground that he
has reached the age of superannuation which is reasonably fixed. Secondly, where he is
compulsorily retired under the rules which prescribe the normal age of superannuation
and provide a reasonably long period of qualifying service after which alone
compulsory retirement can be ordered. Compulsory retirement under a valid rule does
not attract the provisions of clause (2) of Article 311 because such retirement is not
conceived as a penalty but as the exercise of the right reserved to Government of
retiring a Government servant after he has served for a certain length of time. Tara
Singh v. State of Rajasthan, AIR 1975 SC 1487: 1975(3) SCR 1002: 1975(4) SCC 86:
1975 (1) SLR 777: 1975 SLJ 619; Union of India v. S.A. Razak, 1980 Lab IC 1387: AIR
1981 SC 360: 1981(2) SCC 74: 1980(3) SLR 587; Baikunthanath Das v. Chief District
Medical Officer, 1982 (1) SLJ 648: 1981 (3) SLR 459; Kartar Singh v. Punjab State,
1982 (1) SLR 307.
192 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
An ex parte enquiry had been carried out by the Vigilance Department against
the petitioner. On the basis of the report of the Vigilance Department the Screening
Committee recommended for compulsory retirement and the petitioner was
compulsorily retired. Held, the order of compulsory retirement suffers from the vice of
inflicting punishment on the petitioner and is violative of Article 311 of the
Constitution. If the allegations against the petitioner were found to be substantiated by
the Vigilance Department, it was the bounden duty to hold an enquiry against the
petitioner for providing a proper opportunity to him rather than to have adopted this
short cut of removing him from service. Order quashed. Petitioner reinstated. Surendra
Shankar Awasthi v. State of U.P., 1982 Lab IC 548 (All).
5. Compulsory Retirement Simpliciter — Compulsory retirement simpliciter
does not amount to dismissal or removal or reduction in rank under Article 311 or under
the service rules. It is in fact compulsory retirement in accordance with the terms and
conditions of service. State of Haryana v. Inder Prakash Anand, AIR 1976 SC 1841:
1976 Supp SCR 603: 1976(2) SCC 977: 1976 (2) SLR 223: 1976 SLJ 497; Chief
Justice, A.P. v. L.V.A. Dixitulu, 1979 SLJ 332: (1979) 1 SLR 1: AIR 1979 SC 193:
1979(2) SCC 34.
It is no more res integra that premature retirement is not a punishment and the
employee who is ordered to prematurely retired from the Government service is entitled
to all pensionary benefits. What safeguard is provided is that there must be some
material on the record to form opinion and in case there is some material on record,
then the decision taken by the authority may not be subject to scrutiny of this Court,
unless the petitioner has made out a case of mala fide exercise of powers or where the
Government has taken resort to its powers of retiring its employee prematurely with the
object to punish the employee concerned. K.I. Patel v. M.N. Vaishnava, Chief
Conservator of Forest, 1999(1) SLR 646 Guj.
6. General Order for Compulsory Retirement — Where the general order for
compulsory retirement is applicable to all employees, the individual application of the
order in a given case cannot offend Article 16. P. Radhakrishna Naidu v. Government
of A.P., 1977 SLJ 211: 1977 (1) SLR 258: AIR 1977 SC 854: 1977(2) SCR 365:
1977(1) SCC 561. See also Union of India v. Dr. S. Baliar Singh, AIR 1998 SC 539:
1998(2) SCC 208: 1997(9) JT 287: 1998(1) SLR 103: (1998) 1 SCJ 348.
7. Fundamental Rule 56 : Age of Retirement of Central Civil Servant —
Fundamental Rule 56 provides —
(a) Except as otherwise provided in this rule, every Government servant shall
retire from service on the afternoon of the last day of the month in which he attains the
age of fifty-eight years.
(b) A workman who is governed by these rules shall retire from service on the
afternoon of the last day of the month in which he attains the age of sixty years.
Note — In this clause, a workman means a highly skilled, skilled, semi-skilled,
or unskilled artisan employed on a monthly rate of pay in an industrial or a work-
charged establishment.
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 193
society. Union of India v. Col. J.N. Sinha, 1970 SLR 748: AIR 1971 SC 40: 1971(1)
SCR 791: 1970(2) SCC 458: 1971 Lab IC 8: (1971) 1 SCJ 655.
11. Dispute About Age of Civil Servants — (i) Where there is dispute about
the age, the civil servant has to be given an opportunity to show his correct date of
birth. Retirement without such opportunity amounts to his removal from service and is
null and void, being contrary to principles of natural justice. State of Orissa v. Dr.
(Miss) Binapani Dei, AIR 1967 SC 1269: 1967(2) SCR 625: 1967 SLR 465: (1967) 2
SCJ 339: (1967) 2 SCR 626: (1967) II SCWR 443; Daksha Prasad Deka v. I.G.P., AIR
1967 Assam 13; E. Rama Varama Raja v. State of Kerala, AIR 1969 Kerala 317: 1969
SLR 225 (F.B.); Laxmi Narayan v. State of Rajasthan, 1976 SLJ 660: 1977 (1) SLR 44:
Sardar Dewan Singh v. Union of India, 1977 (2) SLR 793; Dalip Singh v. State of
Punjab, 1982 (1) SLR 265.
(ii) There was a discrepancy which was rather wide since the year of birth,
according to one record was 1917, and according to another record 1927. In view of this
considerable discrepancy, the employer appointed its Medical Board to fix the age of
appellant and according to assessment of the age by the Medical Board, it was that he
was 51 on 13.6.1975. Supreme Court held “we see no reason to ignore this scientific
fixation of age” when we have records which are flagrantly conflicting”. Jiwan Kishore
v. Delhi Transport Corporation, AIR 1980 SC 1251: 1980 Supp SCC 678: 1980 SLJ
704: 1980 (2) SLR 513.
(iii) When the petitioner allowed two entries to continue and thereby led the
Government to choose the entry which prima facie appeared genuine and had the
support of confirmatory evidence, he cannot turn round and say that he has been
prejudiced. He is guilty of acquiescence and the case also attracts the doctrine of
estoppel by negligence. Makaradhwaj Singh v. State of M.P., 1974 SLJ 128 (MP).
13. Question as to Age of Judge of High Court — The President acting under
Article 217 (3) performs judicial function and he cannot act on the advice of his
Minister. Union of India v. Jyoti Prakash Mitter, (1971) 1 SCWR 355: AIR 1971 SC
1093: 1971(3) SCR 483: 1971(1) SCC 396: (1971) 2 SCJ 501.
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 197
provides that such retirements can be made only after the officer attains the
prescribed age. Further a compulsorily retired Government servant does not
lose any of the benefits earned by him till the date of his retirement. Three
months” notice is provided so as to enable him to find out other suitable
employment. ……In our opinion, the High Court erred in thinking that the
compulsory retirement involves civil consequences.”
See also State of Gujarat v. Suryakant Chunilal Shah, 1999(6) SLR 324 (SC):
1999(1) SCC 529: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(1) LLN 52: 1999(81) FLR
197: 1999(94) FJR 534: 1999(6) SLR 324; H.C. Gargi v. State of Haryana, 1986(4)
SCC 158: AIR 1987 SC 65: 1986(3) SLR 57 (SC); Gian Singh Man v. High Court of
Punjab & Haryana, 1980(4) SCC 266: AIR 1980 SC 1894; Kailash Chandra Agarwal
v. State of M.P., 1987(3) SCC 513: 1987(4) ATC 209: AIR 1987 SC 1871: 1987(5) 171
(SC); Union of India v. M.E. Reddy, 1980(2) SCC 15: AIR 1980 SC 563: 1979(2) SLR
792 (SC); Baikuntha Nath Das v. Chief Distt. Medical Officer, 1992(2) SCC 299:
1992(21) ATC 649: 1992(2) SLR 2 (SC); Posts & Telegraphs Board v. C.S.N. Murthy,
1992(2) SCC 317: 1992(21) ATC 663: 1992(2) SLR 352 (SC).
19. Compulsory retirement and misuse of power — There were absolutely
no adverse entries in respondent”s confidential record. In the rejoinder filed in Supreme
Court also, nothing averred that the respondent”s service record revealed any adverse
entries. The respondent had successfully crossed the efficiency bar at the age of 50 as
well 55. He was placed under suspension on 22.5.1986 pending disciplinary
proceedings. The State Government had sufficient time to complete the enquiry against
him but the enquiry was not completed within a reasonable time. Even the Review
Committee did not recommend the compulsory retirement of the respondent. The
respondent had only less than two years to retire from service. Held that if the
impugned order is viewed in the light of these facts, it could be said that the order of
compulsory retirement was passed for extraneous reasons. As the authorities did not
wait for the conclusion of the enquiry and decided to dispense with the services of the
respondent merely on the basis of the allegations which had not been proved and in the
absence of any adverse entries in his service record to support the order of compulsory
retirement, it was held that the impugned order was liable to be set aside. State of
Gujarat v. Umedbhai M. Patel, AIR 2001 SC 1109: 2001(3) SCC 314: 2001(3) JT 223:
2001(2) LLJ 1140: 2001(2) SCJ 273.
In K.K. Kandaswamy v. Union of India, AIR 1996 SC 277: 1995(6) SCC 162:
1995(7) JT 80: 1995 Lab IC 2709: 1997(1) LLN 170: 1995(31) ATC 479: 1995(6) SLR
47 (SC), Supreme Court observed that:
“9. While exercising the power under Rule 56(j) of the Fundamental Rules, the
appropriate authority has to weigh several circumstances in arriving at the
conclusion that the employee required to be compulsorily retired in public
interest. The Government is given power to energise to machinery by weeding
out dead wood, inefficient, corrupt and people of doubtful integrity by
compulsorily retiring them from service. When the appropriate authority forms
bona fide opinion that compulsory retirement of the Government employee is in
the public interest. Court would not interfere with the order”.
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 201
(ii) The concept of “public interest” was introduced by sub-rule (j) of Rule 56
of the Fundamental (Sixth Amendment) Rules, 1965. The appellant”s service having
been validly determined by a notice which was issued prior to the date when the
amended rules came into force it was not necessary for the authority to satisfy itself that
it was in “public interest” to retire the appellant compulsorily. B. Venkataswara Rao
Naidu v. Union of India, 1973 SLJ 314: 1973 (1) SLR 676 (SC).
23. Compulsory Retirement under F.R. 56(j), does not Involve Civil
Consequences — What is “public interest” was explained in the decision of Supreme
Court in Union of India v. Col. J.N. Sinha, AIR 1971 SC 40: 1971(1) SCR 791: 1970
SLR 748 (SC): 1970(2) SCC 458: (1970) II SCWR 393. It was pointed out that the
object of premature retirement of a Government servant was to weed out the inefficient,
corrupt, dishonest employees from the Government service. The public interest in
relation to public administration means that only honest and efficient persons are to be
retained in service while the services of the dishonest or the corrupt or who are almost
dead wood, are to be dispensed with. The court observed:
“Compulsory retirement involves no civil consequences. The aforementioned Rule
56(j) is not intended for taking any penal action against the Government servants.
That Rule merely embodies one of the facets of the pleasure doctrine embodied in
Article 310 of the Constitution. Various considerations may weigh with the
appropriate authority while exercising the power conferred under the Rule. In some
cases, the Government may feel that a particular post may be more usefully held in
public interest by an officer more competent than the one who is holding. It may be
that the officer who is holding the post is not insufficient but the appropriate
authority may prefer to have a more efficient officer. It may further be that in certain
key posts public interest may require that a person of undoubted ability and integrity
should be there. There is no denying the fact that in all organisations and more so in
Government organisations, there is a good deal of dead wood. It is in public interest
to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of
the individual Government servant and the interest of the public. While a minimum
service is guaranteed to the Government servant, the Government is given power to
energise its machinery and make it more efficient by compulsorily retiring those who
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 203
in its opinion should not be there in pubic interest. ……It is true that a compulsorily
retirement is bound to have some adverse effect on the Government servant who is
compulsorily retired but then as the Rule provides that such retirements can be made
only after the officer attains the prescribed age. Further a compulsorily retired
Government servant does not lose any of the benefits earned by him till the date of
his retirement. Three months” notice is provided so as to enable him to find out other
suitable employment. ……In our opinion, the High Court erred in thinking that the
compulsory retirement involves civil consequences.”
State of Gujarat v. Suryakant Chunilal Shah, 1999(6) SLR 324 (SC): 1999(1)
SCC 529: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(1) LLN 52: 1999(81) FLR 197:
1999(94) FJR 534: 1999(6) SLR 324; See also H.C. Gargi v. State of Haryana, 1986(4)
SCC 158: AIR 1987 SC 65: 1986(3) SLR 57 (SC); Gian Singh Man v. High Court of
Punjab & Haryana, 1980(4) SCC 266: AIR 1980 SC 1894; Kailash Chandra Agarwal
v. State of M.P., 1987(3) SCC 513: 1987(4) ATC 209: AIR 1987 SC 1871: 1987(5) 171
(SC); Union of India v. M.E. Reddy, 1980(2) SCC 15: AIR 1980 SC 563: 1979(2) SLR
792 (SC); Baikuntha Nath Das v. Chief Distt. Medical Officer, 1992(2) SCC 299:
1992(21) ATC 649: 1992(2) SLR 2 (SC); Posts & Telegraphs Board v. C.S.N. Murthy,
1992(2) SCC 317: 1992(21) ATC 663: 1992(2) SLR 352 (SC); E.V. Naidu v. Union of
India, AIR 1973 SC 698: 1973(3) SCR 216: 1973(1) SCC 361: 1973(1) SLR 676:
(1971) 1 SCJ 655.
499; Shikar Chand Jain v. State of U.P., 1974 SLJ 106; Gian Singh Mann v. High Court
of Punjab, AIR 1980 SC 1894: 1981(1) SCR 507: 1980(4) SCC 266: 1980 (3) SLR 18;
Baldeo Raj Chadha v. Union of India, (1980) 3 SLR 1: (1981) 1 SLJ 188 (SC);
Baikunthanath Das v. Chief District Medical Officer, (1982) 1 SLJ 648 (Orissa): 1981
(3) SLR 459.
29. Intention of Holding Enquiry, then Deciding to Retire — (i) Appointing
authority at first deciding to proceed by way of disciplinary action against a public
servant but subsequently deciding to compulsorily retire him in accordance with the
rules. There is no legal bar in doing so. Basistha Narain v. Commissioner of Income
Tax, AIR 1968 Patna 113; Jagdish Mittar v. Union of India, AIR 1964 SC 449: 1964(1)
LLJ 418.
An order of compulsory retirement passed during the pendency of disciplinary
proceedings cannot invariably be held to be penal in every case. It is a matter which has
to be decided on the basis of the material on which such order is passed. State of Uttar
Pradesh v. Abhai Kishore Masta, 1995(1) SCC 336: 1995(1) SCJ 199: 1995(1) SLR 16:
1995(29) ATC 116: 1995(2) SLJ 1: 1995 Lab IC 1401: 1995(70) FLR 789.
In another case the High Court on its administrative side decided to keep
disciplinary proceedings against the judicial officer pending for the purpose of
imposing the cut on his retiral benefits. It was held that the conclusion is obvious that
action of the High Court in retiring judicial officer was based on the allegation of
misconduct, which was subject matter of the inquiry before a judge of the High Court
and which appears to be the basis for recording of adverse remarks by the High Court in
the ACR of the officer for the year 1991-92. Held that the impugned order of
compulsorily retiring judicial officer though innocuously worded was in fact an order of
his removal from service and cannot be sustained. High Court of Punjab and Haryana
v. Ishwar Chand Jain, AIR 1999 SC 1677: 1999(4) SCC 579: 1999(2) SLR 531:
1999(2) KLT 34(SN): 1999 Lab IC 1823: 1999(3) LLN 28: 1999(3) SLJ 230.
(ii) Dropping Enquiry in Progress and Ordering Compulsory Retirement—
Even though the departmental enquiry has commenced, the Government has the power
to drop the proceedings and order compulsory retirement. State of U.P. v. Man Bahal
Lal Srivastava, 1975 (2) SLR 161: 1975 Lab IC 503.
The factum of pendency of an enquiry or the continuance of the employee
under suspension when the order of his retirement is passed, is not decisive of the
question that needs to be determined. What is decisive is whether the order is by way of
punishment. Merely because the petitioner was under suspension without anything more
at the time the impugned notice of compulsory retirement was served on him, the same
would not amount to an order of punishment. J.M. Sharma v. State of Haryana, 1981
(1) SLR 554.
Departmental proceedings were started against the petitioner in 1959. Although
the dismissal order was set aside in 1966, fresh proceedings were started against him.
The decision to retire him compulsorily was taken as a short cut. Order quashed. O.P.
Gupta v. Union of India, 1981 (3) SLR 778.
206 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
compulsory retirement is passed without application of mind and without forming the
requisite opinion, such an order can be annulled by the Court. Baikunthanath Das v.
Chief District Medical Officer, Baripada, 1982 (1) SLJ 648 (Orissa): 1981 (3) SLR 459;
Bhola Ram v. Lt. Governor, Delhi, 1983 Lab IC 57.
33. Minimum period of service — If a rule provides for compulsory
retirement at any time, without providing for a minimum period of service after which
only compulsory retirement can be ordered, that rule itself must be held to be void for
contravention of Article 311(2) of the Constitution, because such compulsory
retirement, in the case of a permanent government servant, amounts to removal; that the
rule under which the order has been made is unconstitutional and invalid (i) when the
rule does not fix any age of superannuation but enable the government to retire a
government servant at any time, without payment of full pension, and (ii) when the age
of superannuation has not been reasonably fixed and is unnecessarily short. Durgadas
Purkyastha v. Union of India, AIR 2002 SC 2639: 2002(6) SCC 252: 2002(5) JT 210:
2002(5) SLR 229 (SC): 2002 AIRSCW 2966: 2002(48) AllLR 493: 2002 SCC (L&S) 859.
34. Compulsory Retirement Before Age of Superannuation — (i) Rules for
— Government can compulsorily retire an employee even before he has attained the age
of superannuation. Pritam Singh Brar v. State of Punjab, AIR 1968 Punjab 189(FB);
Kartar Singh v. Punjab State, 1982 (1) SLR 307.
Fundamental Rules 56(j)(i) is meant to cover only those who are in a post on a
regular basis, i.e., in a substantive capacity, and not on an officiating basis. Union of
India v. K.R.Tahiliani, 1980(2) SCR 1092: 1980(3) SCC 309: AIR 1980 SC 953: 1980
Lab IC 594: 1980(1) SLR 847: 1980 SCC (Lab) 374: ILR (1980) HP 164 : 1980 (1) SLR 847
(ii) On Completing Reasonably Long Period of Qualifying Service — If a
permanent public servant is compulsorily retired under the rules which prescribe the
normal age of superannuation and provide for a reasonably long period of qualified
service after which alone compulsory retirement can be ordered, that may not amount to
dismissal or removal. Such a rule is valid. Satish Chand Anand v. Union of India, AIR
1953 SC 250; T.C. Shivacharana Singh v. State of Mysore, AIR 1965 SC 280: 1967(2)
LLJ 246: 1967(15) FLR 224; Takhatary Shivdatrai v. State of Gujarat, 1969 (2) SCC
120. See also, Vithalrao Ramachandra Ghorpade v. State of Maharashtra, 1973 (1)
SLR 255; Union of India v. M.E.Reddy, 1980(1) SCR 736: 1980(2) SCC 15: AIR 1980
SC 563: 1980 Lab IC 221: 1979(2) SLR 792: 1980 SCC (Lab) 179.
(iii) On Completing Unreasonably Short Period of Service — (a) A rule
conferring an absolute right to retire a Government servant after he had completed ten
years of qualifying service though providing that such power shall not be exercised
except when it is in public interest, was struck down as contravening Art. 311(2).
Gurdev Singh Sidhu v. Punjab State, (1964) 7 SCR 587: AIR 1964 SC 1585: 1964 Crl
LJ 481; R.L. Butail v. Union of India (1970) II SCWR 561: 1970 SLR 926.
(b) A rule which permits a Government to ask an officer to retire after an
unreasonably short period of service much before the normal age of superannuation
would be hit by Art. 311. Butahari Jena v. State of Orissa, (1971) 1 SCWR 643: AIR
1971 SC 1516: 1971 Supp SCR 352: 1971(2) SCC 232: 1971 Lab IC 948.
208 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
(iv) For Being Unfit — Where the authority chooses to exercise its powers to
compulsorily retire the Government servant by an order in which it brands him “unfit”
to be retained in service on account of his being dishonest, inefficient, or of doubtful
integrity, as a punitive measure, Art. 311(2) of the Constitution will be attracted with
full force and the order of retirement will, in substance, be construed as an order of
“dismissal” or “removal” from service. S. Mangal Singh v. Punjab State, 1968 Cur LJ 13.
(v) For administrative Reasons — Order for retirement on administrative
reasons does not amount to dismissal or removal from service within the meaning of
Art. 311(2) of the Constitution. Dalip Singh v. State of Punjab, (1961) 1 SCR 88: AIR
1960 SC 1305: 1961(2) SCJ 58.
(vi) For Physical Incapacity — In the absence of a service rule, the
compulsory retirement of a Government servant on the ground of physical incapacity is
a punishment as it visits him with penal consequences in that it entails in a premature
end to his employment. Motiram v. N.E.Frontier Railway, AIR 1964 SC 600: 1964(5)
SCR 683: 1964(2) LLJ 467; Gurdev Singh Sidhu v. State of Punjab, AIR 1964 SC 1585;
T.S. Mankad v. State of Gujarat, AIR 1970 SC 143: 1970(1) SCR 244: 1969(2) SCC
120: 1969 SLR 572; S.P. Shrivastava v. State of M.P., 1970 SLR 700: AIR 1971 MP 20.
Petitioner was unable to perform the duties properly because of his bad eye
sight. As such it cannot be said that the action of the respondents was, in any way, mala
fide. T.C. Sanghi v. Union of India, 1982(1) SLJ 21.
(vii) For Unsatisfactory Record of Service — (a) Retirement ordered on the
ground that the record of service was found to be unsatisfactory. No enquiry made as
contemplated by Art. 311(2). Order attaches stigma and is ultra vires. Jagdish Mitter v.
Union of India, AIR 1964 SC 449: 1964(1) LLJ 418; Balbir Singh v. State of Punjab,
AIR 1970 Punjab 459; Baldev Raj Chadha v. Union of India, AIR 1981 SC 70: 1981(1)
SCR 430: 1980(4) SCC 321: 1981 (1) SLJ 188: 1980 Lab IC 1184: 1980 (3) SLR 1.
Whatever value the confidential reports of earlier years may possess, those
pertaining to later years are not only of direct relevance but also of utmost importance.
The uncommunicated adverse entries are not to be considered while taking decision.
Gurdial Singh Fijji v. State of Punjab, AIR 1979 SC 1622: 1979(3) SCR 518: 1979(2)
SCC 368: 1979 Lab IC 1186: 1979 (1) SLR 804; Union of India v. M.E. Reddy, AIR
1980 SC 563: 1980(1) SCR 736: 1980(2) SCC 15: 1980 Lab IC 221: 1979(2) SLR 792;
Brij Bihari Lal v. Hon”ble High Court of M.P., AIR 1981 SC 594: 1981(2) SCR 297:
1981(1) SCC 490: 1981 Lab IC 137: 1980 (3) SLR 583: (1981) 2 SCJ 90: 1981 (1) SLJ 412.
(b) The service record of Government servant, his character roll entries etc. are
relevant factors for deciding whether it is in public interest to retire a Government
servant compulsorily. N.V. Putta v. State of Mysore, AIR 1972 SC 2185: 1973(1) SCR
304: 1972(3) SCC 739: 1972 SLR 525: 1972 Lab IC 942; Shikar Chand Jain v. State of
U.P., 1974 SLJ 106; M.L. Kalia v. Union of India, 1979 (3) SLR 334; Smt. S.R.
Venkataraman v. Union of India, AIR 1979 SC 49: 1979(2) SCR 202: 1979(2) SCC
491: 1978 Lab IC 1641: 1979 SLJ 1: 1979 (1) SLR 130; Brij Bihari Lal Aggarwal v.
Hon”ble High Court of M.P., AIR 1981 SC 594: 1981(2) SCR 297: 1981(1) SCC 490:
1981 Lab IC 137: 1980 (3) SLR 583: (1981) 2 SCJ 90: 1981 (1) SLJ 412.
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 209
There were entries regarding inefficiency as a judicial officer, and touching his
integrity. Right from the beginning of his career, the petitioner was trusted as an
average officer and for several years it was observed that he had tendency to utilise the
official power for personal gains and his general reputation was not even good. His
integrity was also stated to be doubtful. It was held that the decision to retire the officer
prematurely cannot be faulted. Bhikuri Charan Nanda v. State of Orissa, 1999(1) SLR
394 Ori (DB).
(viii) Saying Employee Outlived his Utility — Compulsory retirement saying
that the employee had outlived his utility. No enquiry held as contemplated by Art.
311(2), order attaches stigma and is ultra vires. State of U.P. v. Madan Mohan Nagar,
AIR 1967 SC 1260: 1967(2) SCR 333: 1967 SLR 147: (1967) 1 SCWR 521.
(ix) Without Assigning Reason — There is no violation of Art. 311(2) if the
Government asks any Government servant to retire in accordance with rules without
assigning any reason. Batahari Jena v. State of Orissa, AIR 1971 SC 1516: 1971 Supp
SCR 352: 1971(2) SCC 232: 1971 Lab IC 948: (1971) I SCWR 643; State of Assam v.
Premadhar Baruah, (1970) II SCWR 197: AIR 1970 SC 1314: 1971(1) SCR 503:
1970(2) SCC 211: 1970 Lab IC 1067: 1970 SLR 529: (1971) 2 SCJ 626; Tarlok Singh
v. State of Punjab, (1974) 1 SLR 728: 1974 SLJ 438; Tara Singh v. State of Rajasthan,
AIR 1975 SC 1487: 1975(3) SCR 1002: 1975(4) SCC 86: 1975 SLJ 619: 1975 (1) SLR
777: 1975 Lab IC 1046.
35. Compulsory Retirement with Stigma — (i) If a Government servant is
compulsorily retired from service with stigma, it amounts to punishment. Jogendra
Nath Trivedi v. State of Bihar, 1973 (1) SLR 1030; O.P. Kapoor v. State of Punjab,
1981 (1) SLR 577.
(ii) Where the impugned order of compulsory retirement stated that the
petitioner has accumulated a number of punishments and his general record of service
has been unsatisfactory and he has ceased to be an efficient and useful member of the
police force, held, these expressions definitely cast a stigma on the petitioner and the
order in question would amount to a punishment and his removal from service so as to
attract Art. 311 of the Constitution. P. Karuppiah v. Inspector General of Police, 1982
Lab IC 1258.
(iii) When an order of compulsory retirement casts an aspersion or attaches a
stigma to the officer it amounts to removal and such a case attracts the provisions of
Art. 311(2) of Constitution. State of U.P. v. Madan Mohan Nagar, AIR 1967 SC 1260:
1967(2) SCR 333: 1967 SLR 147. See also I.N. Saksena v. State of M.P., AIR 1967 SC
1964: (1967)1 SCWR 665 : Allahabad Bank Officers Association v. Allahabad Bank,
AIR 1996 SC 2030: 1996(4) SCC 504: 1996(5) JT 275: 1996(4) AD(Delhi) 455: 1996
SCC (L&S) 1037: 1996(2) Lab IC 1730: (1996) 4 SLR 22 (SC).
36. Compulsory Retirement : Order with or without Stigma — Where there
are no express words in the order itself which would throw any stigma, the court cannot
delve into secretariat files to discover whether some kind of stigma can be inferred on
such research. I.N.Saksena v. State of M.P., AIR 1967 SC 1264: 1967(2) SCR 496:
1967 SLR 203: (1967) I SCWR 665; Balbir Singh v. State of Punjab, AIR 1970 Punjab
210 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
459; State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1977(1) SCR 462:
1976(4) SCC 52: 1976 Lab IC 1647: 1976 SLJ 583: 1976 (2) SLR 859.
The petitioner was a competent officer but was lacking in dealing with his
subordinates. He was transferred in the exigencies of service. Petitioner took up leave
and thereafter did not join duties. The charges against him were that he did not report
for duty at the new place of posting, overstayed leave without permission and that he
deliberately disobeyed the order of transfer. He was compulsorily retired. Held, under
the circumstances no stigma in the sense in which the word is ordinarily understood
attached to the petitioner because the order of compulsory retirement was passed
against him. Petition dismissed. T.D. Subramaniam v. Union of India, AIR 1982 SC
776: 1981(4) SCC 150: 1982 Lab IC 442: 1982 (2) SLJ 20: (1981) 1 SCJ 197.
Where the charge against the delinquent (a Postal Assistant) was of wrong
release of a Savings Bank Account in violation of the rules, compulsory retirement is
too harsh. Stoppage of increments (3 years), would suffice. Ram Singh v. Union of
India, (1988) 6 SLR 218 (CAT Chandigarh).
tight. State of Gujarat v. Suryakant Chunilal Shah, 1999(6) SLR 324 (SC): 1999(1)
SCC 529: 1998(8) JT 326: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(81) FLR 197:
1999(94) FJR 534.
Integrity of a government employee is foremost consideration in public service.
If a conduct of a government employee becomes unbecoming to the public interest or
obstruct the efficiency in public services, the government has an absolute right to
compulsorily retire such an employee in public interest. The government”s right to
compulsorily retire an employee is a method to ensure efficiency in public service and
while doing so the government is entitled under Fundamental Rule 56 to take into
account the entire service record, character roll or confidential report with emphasis on
the later entries in the character roll of an employee. In fact, entire service record,
character roll or confidential report furnishes the materials to screening committee or
the state government, as the case may be, to find out whether a government servant has
outlived his utility in service. It is on consideration of totality of the materials with
emphasis on the later entries in the character roll, the government is expected to form
its opinion whether an employee is to be compulsorily retired or not. State of U.P. v.
Vijay Kumar Jain, 2002(3) SCC 641: 2002(3) JT 76: 2002(3) SLR 363 (SC).
Want of any material is almost equivalent to the next situation that from the
available materials no reasonable man would reach such a conclusion. While evaluating
the materials the authority should not altogether ignore the reputation in which the
officer was held till recently. The maxim “Nemo Firut Repente Turpissimus” (no one
becomes dishonest all on a sudden) is not unexceptional but still it is salutary guideline
to judge human conduct, particularly in the field of Administrative Law. The authorities
should not keep the eyes totally closed towards the overall estimation in which the
delinquent officer was held in the recent past by those who were supervising him
earlier. To dunk an officer into the puddle of “doubtful integrity” it is not enough that
the doubt fringes on a mere hunch. That doubt should be of such a nature as would
reasonably and consciously be entertainable by a reasonable man on the given material.
Mere possibility is hardly sufficient to assume that it would have happened. There must
be preponderance of probability for the reasonable man to entertain doubt regarding
that possibility. Only then there is justification to ram an officer with the label
“doubtful integrity”. Zunjarrao Bhikaji Nagarkar v. Union of India, AIR 1999 SC
2881: 1999(7) SCC 409: 1999(5) JT 366: 1999(112) ELT 772: 1999(7) SLT 66:
1999(94) ECR 29: 2000(6) SLR 276 (SC).
45. Compulsory retirement and judicial review — In S.R. Venkataraman v.
Union of India, 1979(2) SCC 491: 1979(1) SLR 130 (SC), Supreme Court held the
order of compulsory retirement as a gross abuse of power as there was nothing on the
record to justify and support the order.
In Baldev Raj Chadha v. Union of India, 1980(4) SCC 321: 1980(3) SLR 1
(SC), it was held that although the purpose of FR 56 was to weed out worthless
employee without punitive extreme, if under the guise of “public interest”, an order of
premature retirement is made for any other purpose, it would be the surest menace to
public interest and the order must fail for unreasonableness, arbitrariness and
“disguised dismissal”.
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 213
order granting permission to retire from June 1978. Government refused to pay the
benefits, saying that the employee did not die while in service. It was held that he must
be deemed to have died in service. Widow”s claim was legal. Madhuramaa v. State of
Karnataka, (1984) 3 SLR 496 (Kar).
(v) An officer gave notice of voluntary retirement [U.P. Fundamental Rules,
Rule 56]. After expiry of the notice period, he was convicted by a criminal court, but no
disciplinary proceedings had been initiated before such expiry. It was held that the
officer had already retired and disciplinary proceedings could not be taken thereafter.
Harish Chandra Srivastava v. Dy.Commissioner, Ferozabad, (1985) 3 SLR 305 (All)
(DB).
(vi) On the date of making application for voluntary retirement, neither
vigilance enquiry nor any disciplinary proceedings were pending or contemplated. It
was only after the appellant handed over charge on 15.2.1996 and requested for release
of retirement benefits on 15.2.1996, the show cause notice was issued. In these
circumstances it was held that the show cause notice was of no consequence which
appeared to have been issued only to defeat the claim voluntary retirement. Held further
that the discretionary power of Management under the scheme, to accept or reject the
request of voluntary retirement was not absolute. Manjushree Pathak v. Assam
Industrial Development Corporation Ltd., AIR 2000 SC 2769: 2000(7) SCC 390:
2000(2) LLJ 1125: 2000(5) SLR 256: 2000(4) LLN 580: 2000(87) FLR 190: 2000(97)
FJR 307
(vii) Denial of certain benefits to the employees opting for retirement in the
second scheme while granting benefits to employees who sought voluntary retirement
in the earlier scheme is discriminatory as it has no intelligible differentia except in
treating both the group of employees differentially. Vice-Chairman and M.D.,
A.P.S.I.D.C. Ltd. v. Ch. R. Varaprasad, 1999(5) SLR 693 AP (DB).
MAJOR PENALTIES
CLAUSES (viii) and (ix)
Discharge
SYNOPSIS
1. Discharge, lesser punishment than dismissal ................................................................. 220
2. Discharge without inquiry .............................................................................................. 220
3. Discharge after summary enquiry whether fit to be retained in service ......................... 220
4. Discharge at the end of tenure ........................................................................................ 220
5. Discharge for being medically unfit .............................................................................. 220
6. Discharge for having been found undesirable ............................................................... 220
7. Discharge for misappropriation and tampering with official record .............................. 220
8. Discharge for overstaying leave .................................................................................... 221
9. Discharge of probationer ............................................................................................... 221
10. Discharge for misconduct or inefficiency:
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 219
Discharge
1. Discharge, Lesser Punishment Than Dismissal — “Discharge” has been
accepted as a punishment lesser than “dismissal”. Brundaban Padhi v. State of Orissa,
AIR 1970 Orissa 81; Govind Ram v. State of H.P., 1975 Lab IC 283.
Order of “dismissal” corrected later as a “discharge”. Penalty does not involve
stigma. Shashi Chaudhry v. State of J & K, 1969 SLR 236.
2. Discharge without inquiry — The employee was discharged from service
on the ground that he was absenting himself from duty habitually. But no charge-sheet
has been served and no explanation was called for and no opportunity was given and no
enquiry has been conducted. The order of discharge set aside. Ram Niwas (Ex Const.) v.
State of Haryana, 1999(1) SLR 463 P&H.
3. Discharge After Summary Enquiry Whether Fit to be Retained in
Service — Summary enquiry held to ascertain whether temporary servant is fit to be
confirmed or retained in service. Government passed order to discharge him. Article
311 (2) will not apply. State of Orissa v. Ram Narayan Dass, (1961) 1 SCJ 209: AIR
1961 SC 177: (1961) I SCR 606; State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC
1089: 1968(3) SCR 234: 1968 SLR 701: 1968 Lab IC 1286: 1968 Cur LJ 687: (1969) 1
SCJ 51; Bishan Lal Gupta v. State of Haryana, (1978) 1 SCJ 215: AIR 1978 SC 363:
1978(2) SCR 513: 1978(1) SCC 202: 1978 (1) SLR 404: 1978 SLJ 220.
4. Discharge at the end of tenure — A temporary teacher in a leave vacancy
cannot be considered as discharged nor claim the status as discharged employee.
Discharge would connote for any other reason ejusdem generis due to abolition of the
post or course of study or such similar circumstances except for discharge due to
misconduct. Such a teacher only will be eligible to set up preferential claim for
appointment but not a teacher who fortuitously came to be appointed in a leave vacancy
much less for a limited period. State of Kerala v. Mother Anasthasia, Superior General,
AIR 1997 SC 1310: 1997(1) SLR 705: 1997(10) SCC 79: 1997(2) LLN 618: 1997(76)
FLR 1: 1997 Lab IC 1522.
5. Discharge for Being Medically Unfit — Appellant was declared medically
unfit. Government passed order to discharge him from service. Order is not an order of
dismissal or removal. Shrinivas Ganesh v. Union of India, AIR 1956 Bombay 455;
Hartwell Prescott Singh v. U.P. Government, AIR 1957 SC 886: 1958 SCJ 148.
6. Discharge for having been Found Undesirable — Temporary civil servant
served with the order “having been found undesirable to be retained in Government
service is hereby served with a month”s notice of discharge.” No doubt the order
purports to be one of discharge but it expressly casts a stigma and must be held to be an
order of dismissal. Order violates Article 311 of the Constitution. Jagdish Mitter v.
Union of India, AIR 1964 SC 449: 1964(1) LLJ 418.
7. Discharge for Misappropriation and Tampering with Official Record —
The petitioner was discharged from service for misappropriating government money
and tampering with official records. Held, the order casts aspersion and attaches stigma
to the officer and amounts in substance to dismissal which could not be passed without
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 221
complying with the provisions of Article 311 (2) of Constitution. Kalipada Ghosh v.
Sub-Divisional Officer, AIR 1969 Cal 164.
8. Discharge for Overstaying Leave — Overstaying leave without reasonable
cause or absenting without leave will not result in automatic discharge from service.
Reasonable opportunity must be given to show cause why he be not discharged..
Mafatlal Narain Dass Barot v. J.D. Rathod, (1967) 2 SCJ 64: (1967) 1 SCWR 30; Jai
Shankar v. State of Rajasthan, AIR 1966 SC 492: 1966(1) SCR 825: (1966) 1 SCWR
92: (1966) 1 SCJ 731.
9. Discharge of probationer — The period of probation is a period of test
during which the work and conduct of an employee is under scrutiny. If on an
assessment of his work and conduct during this period it is found that he was not
suitable for the post it would be open to the employer to terminate his services. His
services cannot be equated with that of a permanent employee who, on account of his
status, is entitled to be retained in service and his services cannot be terminated
abruptly without any notice or plausible cause. This is based on the principle that a
substantive appointment to a permanent post in a public service confers substantive
right to the post and the person appointed on that post becomes entitled to hold a lien on
the post. He gets the right to continue on the post till he attains the age of
superannuation or is dismissed or removed from service for misconduct etc. after
disciplinary proceedings in accordance with the Rules at which he is given a fair and
reasonable opportunity of being heard. He may also come to lose the post on
compulsory retirement. Life Insurance Corporation of India v. Raghavendra Seshagiri
Rao Kulkarni, AIR 1998 SC 327: 1997(8) SCC 461: 1997(77) FLR 782: 1997(5) SLR
774: 1998(2) LLJ 1161: 1998 Lab IC 411: 1998(1) LLN 56: 1998(92) FJR 25.
The law in relation to termination of service of an employee on probation is
well settled. If any order terminating the service of a probationer be an order of
termination simpliciter without attaching any stigma to the employee and if the said
order is not an order by way of punishment, there will be no question of the provisions
of Article 311 being attracted. In each case it has therefore to be determined whether
the impugned order is by way of punishment or not. Even if misconduct, negligence,
inefficiency may be the motive or inducing factor which influenced the authority to
terminate the services of probationer/temporary Government servant, such termination
cannot be termed as penalty or punishment. Union of India v. P.S. Bhatt, 1981(2) SCC
761: AIR 1981 SC 957: 1981 Lab IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981
SCC (Lab) 460: 1981(2) SCWR 88
If a probationer is discharged on the ground of misconduct or inefficiency or
for similar reason without a proper enquiry and without his getting a reasonable
opportunity of showing cause against his discharge it may in a given case amount to
removal from service within the meaning of Art. 311 (2) of Constitution. Samsher Singh
v. State of Punjab, 1974 (2) SLR 701: AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2)
SCC 831: 1974(2) SLR 701; Union of India v. S.B. Chatterjee, 1980 (2) SLR 365.
When employee was holding a temporary service and was on probation an order of
termination simpliciter was passed against him. As the service records were found
unsatisfactory, the termination order cannot be held arbitrary and capricious.
222 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
The authority may come to the conclusion that on account of inadequacy for
the job or for any temperamental or other object not involving moral turpitude, the
probationer is unsuitable for the job and hence she must be discharged. It would not
amount to punishment. Perpetua E. Rodrigues v. Goa Public Service Commission, Goa,
1999(3) SLR 667 Bom (DB).
Where the driving of the staff car by the probationer was not satisfactory and
that, therefore, they have terminated his services during probation. The very object of
the probation is to test the suitability and if the appointing authority finds that the
candidate is not suitable, it certainly has power to terminate the services of the
employee. Under these circumstances, it cannot but be held that the reasons mentioned
constitute motive and not foundation for termination of service. K.V. Krishnamani v.
Lalit Kala Academy, AIR 1996 SC 2444: 1996 Supp (2) SCR 844: 1996(5) SCC 89:
1996 SCC(L&S) 1132: 1996 Lab IC 2063: 1996(2) LLJ 661: 1996(74) FLR 1936:
1996(3) SLJ 29: 1996(4) SLR 504: 1996(2) LLN 495.
11. Discharge from Service on Abolition of Post — (i) Compliance with the
requirements of Art 311(2) not necessary. Mohinder Singh v. Union of India, AIR 1969
Delhi 170: 1969 DLT 595; P.Bhupathi Reddy v. Govt. of A.P., AIR 1968 AP 307;
M. Ramanatha Pillai v. State of Kerala, (1974) 1 SCWR 1: AIR 1973 SC 2641: 1974
(1) SCR 515: 1973 (2) SCC 650: 1974 (1) SLR 225.
(ii) The termination of post in good faith and the consequent termination of the
service of the incumbent of that post would not attract Art. 311. State of Haryana v.
Des Raj, AIR 1977 SC 1199: 1976 SLJ 222: 1976 (1) SLR 191; K. Rajindran v. State of
Tamil Nadu, AIR 1982 SC 1107: 1982 (3) SCR 628: 1982 (2) SCC 273: 1982 (1) SLJ
604: 1982 (2) SLR 196: 1982 Lab IC 876.
(1) SCR 472: 1969 (2) SCC 240: (1970) 1 SCJ 257. Under terms of service. Somnath
Sahu v. State of Orissa, 1981 (2) SLR 550 (SC.).
When service conditions provided termination on one month notice and order
of termination was served two days before the date from which termination was to be
effected, it was held that the Order of termination was bad in law even employee was
temporary. Prabhudayal Birari v. M.P. Rajya Nagrik Aapurti Nigam Ltd., AIR 2000 SC
3058: 2000 (5) SLR 124 (SC): 2002 (6) SCC 703: 2000 (2) LLJ 1105: 2000 (4) LLN
608: 2000 (87) FLR 4: 2000 (97) FJR 299.
13. Discharge When There is no Reduction of Establishment — The State
has no power to terminate the services when the post itself was continuing. If action by
way of disciplinary proceedings was taken, then the State should have complied with
Art. 311 of Constitution. State of Haryana v. Rajendra Sareen, (1972) 2 SCJ 604: AIR
1972 SC 1004: 1972(2) SCR 452: 1972(1) SCC 267: 1972 SLR 112: 1972 Lab IC 546.
14. Discharge by Authority who had Bias Against the Petitioner —
Petitioner had put in more than three years of service as Departmental Branch Post
Master. She had made complaint against the Superintendent of Post Offices, alleging
misbehaviour towards her. A person who has been charged with a conduct which would
entail his dismissal from the office cannot be expected to have given fair and impartial
consideration to the case of petitioner for appointment. Order set aside. A. Santha
Kumari v. Regional Director of Postal Services, 1982 (2) SLJ 173.
15. Discharge, Public Service Commission not Consulted — Provisions of
Art. 320(3)(c) are not mandatory and do not confer any rights on the public servant.
State of U.P. v. M.L. Srivastava, 1958 SCJ 150: 1958 SCR 533: AIR 1957 SC 912; Ram
Gopal Chaturvedi v. State of M.P., (1969) 1 SCWR 1115: AIR 1970 SC 158: 1970(1)
SCR 472: 1969(2) SCC 240.
16. Discharge of Temporary Employee: Show Cause Notice if
Necessary — The State Government has the right to terminate the service of temporary
civil servant without issuing any notice to him to show cause against the proposed
action. Ram Gopal Chaturvedi v. State of M.P., (1969) 1 SCWR 1115: AIR 1970 SC
158:1970(1) SCR 472: 1969(2) SCC 240: (1970) 1 SCJ 257.
Once an employee attains the “temporary” status, he becomes entitled to
certain benefits one of which is that he becomes entitled to the constitutional protection
envisaged by the Article 311 of the Constitution and other Articles dealing with
services under the Union of India. Nar Singh Pal v. Union of India, AIR 2000 SC 1401:
2000(3) SCC 588: 2000(3) JT 593: 2000(1) LLJ 1388: 2000(96) FJR 502: 2000(2) SLR
592: 2000(3) SLJ 332: 2000 Lab IC 1377: 2000(2) LLN 407: 2000(85) FLR 458.
A purely temporary government servant has no right to the post and her
services were terminated in accordance with the terms and conditions of her
appointment, which would not result in evil consequences. Perpetua E. Rodrigues v.
Goa Public Service Commission, Goa, 1999(3) SLR 667 Bom (DB).
An employee of the Directorate of Field Publicity, Andhra Pradesh, abstained
from duty without leave on more than one occasion and was also guilty of
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 225
unsatisfactory behaviour. His services were terminated with one month”s notice. The
order itself did not cast any stigma. Art. 311 of the Constitution was held to be inapplicable.
Y.N. Reddy v. Director of Field Publicity, (1983) 2 SLR 431, 435 Para. 6, 7, 8 (AP).
Removal
17. Removal or Dismissal, Meaning of — The words “dismissed” and
“removed” mean nothing more or less than the termination of service and cover every
termination of service. Removal and dismissal stand on the same footing except that
dismissal disqualifies for future employment under the Government. Moti Ram Deka v.
General Manager, N.E.F.Rly, AIR 1964 SC 600: 1964(5) SCR 683: 1964(2) LLJ 467;
Shyam Lal v. State of U.P., AIR 1954 SC 369: 1955(1) SCR 26: 1954 SCJ 493; Khem
Chand v. Union of India, 1958 SCJ 497: AIR 1958 SC 300: 1958 SCR 1080;
Parshottam Lal Gupta v. State of Punjab, AIR 1967 Punj. 415; see also Workers
employed in Hirakud Dam v. State of Orissa, AIR 1971 SC 2242: 1971(3) SCR 646:
1971(1) SCC 583: 1971(2) SLR 219: 1971 Lab IC 1381; (1972) 1 SCJ 694: Mohammad
Abdul Salam Khan v. Sarfaraz Ahmed, AIR 1975 SC 1964: 1974 SLJ 352: 1975 (1)
SLR 65; U.P. Government v. Sabir Hussain, AIR 1975 SC 2045: 1975 Supp SCR 354:
1975(4) SCC 703: 1975 SLJ 525: 1975 (2) SLR 267; Barda Kanta Misra v. High Court
of Orissa, (1977) 1 SCJ 172: AIR 1976 SC 1899: 1976 Supp SCR 561: 1976(3) SCC
327: 1976(2) SLR 186: 1976 SLJ 529: 1976 Lab IC 1202.
18. Dismissal or Removal of a Government Servant — Art. 311(2) of the
Constitution lays down that no person who holds a civil post under the Union or a State
shall be dismissed or removed or reduced in rank except after an inquiry in which he
has been informed of the charges against him and given a reasonable opportunity of
being heard in respect of those charges. Art. 311 makes no distinction between
permanent and temporary posts and extends its protection equally to all Government
servants holding permanent or temporary posts or officiating in any of them. The
protection of Art. 311 is available only where dismissal, removal or reduction is sought
to be inflicted by way of punishment and not otherwise. Parshottam Lal Dhingra v.
Union of India, 1958 SCJ 217: 1958 SCR 828: AIR 1958 SC 36. The principles
formulated in this case have furnished the principal guidelines in all future cases
relating to dismissal, removal or reduction in rank of Government servants.
19. Removal, Dismissal or Termination, Motive of Order — The Court has
to see the truth and substance of the matter and has to determine whether an order
though couched as a simple order of termination really amounts to removal, dismissal
or termination from service. State of Punjab v. Sukh Raj Bahadur, (1969) 1 SCJ 51:
AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701; Swami Saran Saxena v. State of
U.P., 1969 SLR 787; Dinkar Keshav Bedekar v. State of Maharashtra, 1970 Lab IC
139; State of Bihar v. Shiv Bhikshuk Mishra, 1970 SLR 863: (1970) II SCWR 606:
(1971) 2 SCJ 68; Sharat Chand Mishra v. State of U.P., 1972 SLR 184; K.K. Mittal v.
Union of India, 1974 (2) SLR 602.
Even if misconduct, negligence, inefficiency may be the motive or the inducing
factor which influences the authority to terminate the service of the employee on
probation, such termination cannot be termed as penalty or punishment when there are
no express words in the impugned order itself which throw a stigma on the Government
226 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
servant. Oil and Natural Gas Commission v. Dr Md. S.Iskandar Ali, AIR 1980 SC
1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 SLJ 591: 1980 (2)
SLR 792; Union of India v. P.S. Bhatt, 1981(2) SCC 761: AIR 1981 SC 957: 1981 Lab
IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981 SCC (Lab) 460: 1981(2) SCJ 65:
1981(2) SCWR 88; State of Uttar Pradesh v. Prem Lata Misra, AIR 1994 SC 2411:
1994 (4) SCC 189: 1994 (27) ATC 558: 1994 (2) SLR 708: 1994 (2) SLJ 167: 1994 (2)
LLN 427: 1995 (1) LLJ 28; Kunwar Arun Kumar v. Uttar Pradesh Electronics
Corporation Ltd., 1996 Supp (8) SCR 19: 1997(2) SCC 191: 1997(1) LLN 570: 1997(1)
SLR 136: 1997(1) SLJ 234: 1997(91) FJR 55: 1997(3) LLJ 791.
20. Removal for not Reporting on Duty After Transfer — On plaintiff”s not
reporting on duty after transfer an order was passed that he had lost his lien on post.
Held, the order amounted to removal and could not be passed except in adherence to the
provisions of Art. 311 of the Constitution. State of Mysore v. Anthony Benedict, 1969 SLR 21.
21. Removal for Overstaying Leave or Absence — The removal of a
Government servant from service for overstaying his leave or for absenting himself
without leave is illegal even though it is provided by the service regulation that any
individual who absents himself without permission after the end of his leave would be
considered to have sacrificed his appointment and may be reinstated only with the
sanction of competent authority. This cannot entail automatic removal from service
without giving such person reasonable opportunity to show cause why he be not
removed. Jai Shankar v. State of Rajasthan, (1966) 1 SCJ 731: AIR 1966 SC 492:
1966(1) SCR 825; Mafatlal Narandas Barot v. J.D. Rathod, (1961) 1 SCWR 30: AIR
1966 SC 1364: 1966(3) SCR 40: (1967) 2 SCJ 64; B.M. Tripathi v. State of U.P., AIR
1971 All. 346: 1971 (2) SLR 738; Sobhana Das Gupta v. State of Bihar, AIR 1973
Patna 431: 1974 (2) SLR 674; State of Assam v. Akshaya Kumar Deb, AIR 1976 SC 37:
1975(4) SCC 339: 1975(2) SLR 430: 1975 Lab IC 1753: 1975 SLJ 592: (1976) 2 SCJ
246; M.M. Joseph v. Union of India, 1979 (3) SLR 434; State of Rajasthan v. Mangal
Singh, 1981 (1) SLJ 173.
22. Removal or Dismissal Only After Inquiry — The words “dismissed” and
“removed” are technical words. Both in the case of removal or dismissal there is a
stigma. It also involves loss of benefit. No person mentioned in Art. 311(1) shall be
dismissed or removed except after an inquiry in which he has been informed of the
charges against him and given a reasonable opportunity of being heard in respect of
those charges. M. Ramanatha Pillai v. State of Kerala, AIR 1973 SC 2641: 1974(1)
SCR 515: 1973(2) SCC 650: 1974 (1) SLR 225: (1974) 1 SCWR 1; Harish Chandra v.
Dy. Director of Education, AIR 1965 Raj 108; Mohd. Ibrahim v. State, 1970 SLR 129.
The penalty of removal from service cannot be imposed without recourse to disciplinary
proceedings. Uttar Pradesh Co-operative Land Development Bank Ltd. v. Chandra
Bhan Dubey, AIR 1999 SC 753: 1999 (1) SCC 741: 1999 (1) CLT 134 (SC): 1999 (2)
SLR 576: 1999 (1) LLJ 633: 1999 (1) LLN 1081: 1999 (3) SLJ 124 .
If the termination is punitive in nature and is brought about on the ground of
misconduct. Article 311(2) would be attracted and in that situation it would be
incumbent upon the employer, in the case of Government service, to hold a regular
departmental enquiry. In any other case also, specially those relating to statutory
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 227
25. Removal and judicial review — The court is not a court of appeal to go
into the question of imposition of the punishment. It is for the disciplinary authority to
consider what would be the nature of the punishment to be imposed on a Government
servant based upon the proved misconduct against the Government servant. Its
proportionality also cannot be gone into by the Court. The only question is: whether the
disciplinary authority would have passed such an order. It is settled law that even one
of the charges, if held proved and sufficient for imposition of penalty by the
disciplinary authority or by the appellate authority, the Court would be loath to interfere
with that part of the order. The order of removal does not cast stigma on the employee
to disable him to seek any appointment elsewhere. Therefore interference with such
order, under the circumstances, held to be not permissible. State of Uttar Pradesh v.
Nand Kishore Shukla, AIR 1996 SC 1561: 1996 (3) SCC 750: 1996 (2) SLR 504: 1996
SCC (L&S) 867: 1996 (2) LLJ 672: 1996 (2) LLN 241; Government of Tamil Nadu v.
A. Rajapandian, AIR 1995 SC 561: 1995 (1) SCC 216: 1995(29) ATC 89: 1994(5) SLR
745: 1995(2) SLJ 216: 1995(1) LLJ 953: 1996(2) LLN 459.
26. Reversion to Substantive Post, Not Removal — (i) Reversion to
substantive post is not removal from service. Fateh Singh Chugh v. State of Punjab,
AIR 1970 Punj 315.
(ii) Where an order of reversion of a person who had no right to the post, does
not show ex-facie that he was being reverted as a measure of punishment or does not
cast any stigma on him, the courts will not normally go behind that order to see if there
were any motivating factors behind that order. S.P. Vasudeva v. State of Haryana, AIR
1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 (2) SLR 740: 1976 SLJ 271.
Dismissal
27. Dismissal, Condition of Service — Dismissal of an official is a matter
which falls within “conditions of service” of public servants. State of M.P. v. Shardul
Singh, (1970) 2 SCJ 442: (1970) 1 SCWR 65: 1970 SLR 101.
28. Dismissal for Conviction on a Criminal Charge — See Commentary
under Rule 19(i).
and allowances. Art. 102 of Constitution applies and not Art. 120. State of Rajasthan v.
Ratan Lal Sogani, 1970 SLR 87.
Where the employee in an Ordnance factory was twice found sleeping during
duty hours, he is not fit to remain in service. However, removal was substituted for
dismissal. Kamal Kumar Ahirwar v. Union of India, (1988) 5 SLR 593 (CAT Jabalpur).
30. Dismissal of Police Officer for Misconduct — The provisions of Police
Rules are to be complied with. Departmental action in disregard thereof was invalid.
State of U.P. v. Babu Ram Upadhya, (1961) 2 SCR 679; Jagan Nath v. Sr. Supdt. of
Police, AIR 1962 Punjab 38; Delhi Administration v. Chanan Shah, (1969) 2 SCJ 644:
(1969) II SCWR 86: AIR 1969 SC 1108: 1969(3) SCR 653: 1969(1) SCC 737: 1969
SLR 217 followed in Union of India v. Ram Kishan, (1971) 1 SCWR 838: AIR 1971 SC
1403: 1971 Supp SCR 757: 1971(2) SCC 352: 1971 Lab IC 894: 1971 CAR 279; See
also State of Haryana v. Surjan Singh, (1990) 2 SLR 88 (P&H).
A constable of Police consuming liquor on duty and assaulting his colleague. It
was held to be gravest act of indiscipline and an order of dismissal held to be proper.
State of Punjab v. Jagir Singh, 2002(1) SLR 398 P&H.
Absence from duty by Police Officer is gravest act of misconduct for which
dismissal was held to be justified. State of Punjab v. Surjit Singh, 2002(3) SLR 148 P&H.
An Inspector of Police, a higher ranking officer, if he demands and accepts
illegal gratification and restrains himself from initiating prosecution against the
offender, it would have an effect on the maintenance of law and order in the society.
Order of dismissal from service was therefore affirmed. Government of Andhra Pradesh
v. B. Ashok Kumar, AIR 1997 SC 2447: 1997(5) SCC 478: 1997(5) JT 412: 1997(2)
LLN 600: 1997(76) FLR 598: 1997(2) SLJ 238: 1997 Lab IC 2353: 1997(2) UJ 185:
1997(4) SLR 242.
When abusive language is used by anybody against a superior, it must be
understood in the environment in which that person is situated and the circumstances
surrounding the event that led to the use of the abusive language. No straight jacket
formula could be evolved in adjudging whether the abusive language in the given
circumstances would warrant dismissal from service. Each case had to be considered on
its own facts. What was the nature of the abusive language used by the police constable
in this case was not stated. Therefore the imposition of punishment of dismissal from
service was held to be harsh and disproportionate to the gravity of charge imputed to
the delinquent constable. Ram Kishan v. Union of India, AIR 1996 SC 255: 1995(6)
SCC 157: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71) FLR 929.
31. Dismissal with Retrospective Effect — An order of dismissal with
retrospective effect is in substance an order of dismissal as from the date of the order
with the super added direction that the order should operate retrospectively as from an
anterior date. The two parts of the order are clearly severable. Assuming that the second
part of the order is invalid, there is no reason why the first part of the order should not
be given the fullest effect. The court cannot pass a new order of dismissal, but surely it
can give effect to the valid and severable part of the order. R. Jeevaratnam v. State of
Madras, (1966) II SCWR 464: AIR 1966 SC 951: 1966(2) SCR 204: (1967) 1 SCJ 404:
230 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
1967 SLR 657. In Puran Singh v. State of Punjab, 1982 (2) SLR 126, the dismissal was
also quashed.
Order of dismissal can not be passed with retrospective effect. Punjab State
Electricity Board v. Gurpal Singh Bhamra, (1989) 3 SLR 19 (P&H) (S.S. Sodhi, J.).
See also Dharam Veer Sharma v. United Commercial Bank, 1997 (3) SLR 319 (P&H);
Gurudas G. Priolkar v. Union Bank of India, 1997 (5) SLR 157 (Bom) (DB);
Subhashish Mukherji v. State of Haryana, 1997 (5) SLR 746 (P&H); Satyendra Jeet
Singh v. Union of India, ATR (1986) 2 CAT 268.
32. Dismissal Order, When Becomes Effective — Mere passing of the order
of dismissal would not make it effective unless it was published and communicated to
the concerned officer. State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313:
(1966) 2 SCJ 777: 1966(2) LLJ 188; Rama Kant Banik v. District School Board, AIR
1969 Calcutta 397; Bansidhar Panigrahi v. State of Orissa, 1975 SLJ 150: 1975 (2)
SLR 725: 1975 Lab IC 932.
When an order of dismissal or removal from service is sent out, it is effective
on the authority concerned, but so far as the Government servant is concerned, it
becomes effective only when he is apprised of it either by oral communication or by
actual service of it upon him. Umashankar Chatterjee v. Union of India, 1982 (2) SLJ
368: 1982 (2) SLR 724.
Where order of termination is passed by the appointing authority, its
communication by any other authority would not render it bad in law. Union of India v.
Sumitra Devi, 2000 (2) SLR 403 SC.
33. Dismissal, Discharge or Removal for Overstaying Leave — Dismissal,
discharge or removal from service for overstaying leave without inquiry and without
giving reasonable opportunities to the employee concerned as required by Art. 311 is
illegal. Jai Shankar Kar v. State of Rajasthan, AIR 1966 SC 492: 1966(1) SCR 825:
1966(2) LLJ 140: (1966) 1 SCJ 731; Mafatlal Narandas Barot v. J.D. Rathod, AIR
1966 SC 1364: 1966(3) SCR 40; Maqbool Hussain v. Supdt. of Police, 1969 SLR 660;
see also Sahoodul Haque v. Registrar, Co-operative Societies, (1974) II SCWR 346:
AIR 1974 SC 1896: 1975(3) SCC 108: 1974(2) SLR 547: 1974 Lab IC 1276.
34. Dismissal for Absence from Duty — Pay deducted for absence from duty
without leave and absence was treated leave without pay. Employee cannot be
dismissed for absence from duty under such circumstances. Tito Francisco Perera v
Administrator of Goa, 1978 SLJ 614; Anwar Khan v. Administrator of Goa, 1978 SLJ
450; Chamarthal Kalan Co-operative Agricultural Service Society Ltd., v. Nand Singh,
(1994) 1 SLR 385 (P&H); Ram Kumar v. State of Haryana, 1997 (5) SLR 504 (P&H).
Gravity of such misconduct as an act of indiscipline cannot be mitigated it as
detrimental effect on public rights convenience and therefore, order of dismissal was
restored. Divisional Controller, NWKRTC, Bagalkot v. Raghavendra Madahava Katti,
2002(1) SLR 43 Kar (DB); Absence from duty without proper intimation is a grave
offence warranting removal from service as mere making a request for leave which was
not accepted is not sufficient explanation. Mithilesh Singh v. Union of India, 2003 (2)
SLR 620 SC.
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 231
Once the leave is regularised without pay then there is no ground to terminate
the services. Chhotey Lal v. General Manager, 2001(4) SLR 387 Delhi. Absence from
duty was condoned by the SP who ordered the treatment of his absence from duty as
leave with pay. It was held that the charge of absence from duty if there was any, stood
condoned. State of Punjab v. Charanjit Singh, 2001(1) SLR 183 P&H.
In another case when period of absence was treated as leave without pay it was
held that it does not obliterate order of dismissal as it is only for maintaining correct
service record. Deputy Commissioner of Police v. Jorawar Singh, 2001(1) SLR 158
Delhi (DB): 2000(4) AD(Delhi) 873 See also Maan Singh v. Union of India, 2003 (2)
SLR 607 SC explaining State of Punjab v. Bakshish Singh, 1998 (8) SCC 222: 1998 (5)
SLR 625 SC and State of Madhya Pradesh v. Harihar Gopal, 1969 SLR 274 SC.
While considering the misconduct of absence from duty the punishing authority
or appellate authority ought to consider the length of service rendered by the employee,
while imposing the punishment. Mahipat (Ex. Constable) v. State of Haryana, 1994(4)
SLR 311 relied in Jamila v. State of Rajasthan, 2002(3) SLR 501 (Raj).
Employee remained absent without leave for 162 days and dismissed.
Dismissal order was set aside by Labour Court on misplaced sympathy. Held that
gravity of such misconduct as an act of indiscipline cannot be mitigated it as
detrimental effect on public rights convenience and therefore, order of dismissal was
restored. Divisional Controller, NWKRTC, Bagalkot v. Raghavendra Madahava Katti,
2002(1) SLR 43 Kar (DB).
The abandonment of service should not be inferred unless the intention of the
workman to abandon the service is clear and unambiguous. The intention may be
inferred from the acts and conduct of the party and is a question of fact. Temporary
absence is not ordinarily sufficient to constitute as “abandonment of office”. There
must be total or complete giving up of duties so as to indicate an intention not to
resume the same. When a workman, on expiry of his leave, submitted several
representations to the employer (as happened in the instant case) (a) expressing his
intention and willingness to join the duty and (b) praying for permission of the higher
authority to join his duty and when the employer chose not to reply to such
representations thereby keeping the workman waiting for permission to join the duty
and when in this process and for these reasons the workman could not join his duty, in
such circumstances, absence of the workman cannot be equated with “absent without
seeking permission” so as to attract the fiction created by the work “shall be deemed to
have left the service of the company on his own record.” Radha Gobinda Ghatak v.
State of West Bengal, 1999(2) SLR 142 Cal.
The unduly long absence from duty without sanctioned leave in given cases
may result in voluntary presumption of abandonment of service and in such case no
element of punishment is involved which may require adherence to principles of natural
justice. Anand Bharti v. State of Rajasthan, 2002(3) SLR 60 Raj (DB).
Punjab State v. Hari Singh, 2001(1) SLR 151 P&H and Gopal Clothing Company Ltd.
v. Presiding Officer, 2001(1) SLR 142 (DB).
While considering the misconduct of absence from duty the punishing authority
or appellate authority ought to consider the length of service rendered by the employee,
while imposing the punishment. Mahipat (Ex. Constable) v. State of Haryana, 1994 (4)
SLR 311 relied in Jamila v. State of Rajasthan, 2002 (3) SLR 501 (Raj).
35. Dismissal for assaulting co-employee — Serious act of misconduct of
assault on a co-workman on the premises of the factory proved against the workman. A
clean past record does not give a licence or permission to the workman to commit an
assault and to get away with the same on the ground of clean and good past. Punishment
of dismissal cannot be said to be shockingly disproportionate. Precipenium Valve
Manufacturers v. Presiding Officer, 2001 (4) SLR 85 Bom.
An employee in a drunken state assaulting his superior in office is a grave
misconduct. For such misbehaviour the employee was convicted but released on
probation. But it was held that release on probation means misconduct was not serious
and such employee could continue in service. Babulal v. State of Rajasthan, 2002 (1)
SLR 599 Raj (DB).
36. Dismissal for gravest misconduct— A constable of Police consuming
liquor on duty and assaulting his colleague. It was held to be gravest act of indiscipline
and an order of dismissal was held to be proper. State of Punjab v. Jagir Singh,
2002(1) SLR 398 P&H. Absence from duty by Police Officer is gravest act of
misconduct for which dismissal was held to be justified. State of Punjab v. Surjit Singh,
2002 (3) SLR 148 P&H.
37. Dismissal, Power of — Power of dismissal cannot be exercised by an
authority subordinate in rank to the appointing authority. State of U.P. v. Ram Naresh
Lal, AIR 1970 SC 1263: 1970(3) SCC 173: 1970 SLR 819: 1970 Lab IC 1063.
Article 311 gives protection to a member of a civil service of the Union or an
all-India service or a civil service of a State or to a person holding a civil post under the
Union or a State against dismissal or removal by an authority subordinate to that by
which he was appointed. Article 311 does not provide that a member of a civil service
or a person holding a civil post either under the Union or a State cannot be dismissed or
removed by an authority except the appointing authority. Held that there is no
requirement that the authority which takes disciplinary action must continue to have the
power of making appointment to the civil service or on a civil post under the Union or a
State. It can be any other authority so long as it is not subordinate in rank or grade to
the authority by which the delinquent Government servant was appointed. That is the
only requirement of Article 311 and nothing more can be read into it. Jai Jai Ram v.
Uttar Pradesh State Road Transport Corporation, AIR 1996 SC 2289: 1996(4) SCC
727: 1996(6) JT 463: 1996 SCC(L&S) 1071: 1996 Lab IC 2034: 1996(2) LLJ 729:
1996(3) SLJ 15: 1996(5) SLR 141: 1996(74) FLR 2016: 1996(2) LLN 465.
However it is not necessary that the authority competent to impose the penalty
must initiate the disciplinary proceedings and that the proceedings can be initiated by
any superior authority who can be held to be the controlling authority who may be an
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 233
TERMINATION OF SERVICES
Explanation (viii)
SYNOPSIS
Probationer
1. Probationer – meaning of ... .......................................................................................... 236
2. Probationer, Status of ..................................................................................................... 236
3. Probation, duration of..................................................................................................... 236
234 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
being terminated because his performance is not satisfactory, the employer runs the risk
of the allegation being made that the order itself casts a stigma. Normally, therefore, it
is preferred that the order itself does not mention the reason why the service are being
terminated. Krishnadevaraya Education Trust v. L.A. Balakrishna, AIR 2001 SC 625:
2002 SCC(L&S) 53: 2001(1) JT 617: 2001(1) SLR 635 (SC): 2001 Lab IC 642: 2001
AIRSCW 253: 2001 AIR Kant HCR 2152: 2001(1) Cur LR 534: 2001(2) LRI 1248.
The term of appointment permitting the employee to terminate the service of
the employee during the period of probation cannot be said to be illegal or unfair. When
a person is appointed on a specific condition that he will be on probation, the employer
has a right to adjudge the suitability of the employee in the light of his performance.
The employee is on trial. The employer has a right to inform an employee that his
performance shall be watched for a particular duration of time. If he does not come upto
the required standard, his services can be terminated. Held that no violation of any
principle of public policy was involved. The action was not violative of any rule.
Section 23 of the Contract Act is not even remotely attracted. Jasmer Singh v.
Chandigarh State Co-operative Bank Ltd., 1999(2) SLR 47 P&H (DB).
Where service of a probationer is terminated on the ground that his
performance was not found satisfactory during the period of probation, the termination
is not punitive in nature and the provisions of Article 311(2) of the Constitution need
not be followed. Where the services of the petitioner were terminated on the ground that
her performance during the second year of probation was not satisfactory and such a
termination cannot be held to be punitive or to cast any stigma so as to attract the
provisions of Article 311(2) of the Constitution. Aditi Choudhury (Smt) v. State of
Tripura, 1999(3) SLR 339 Gau.
Generally speaking when a probationer”s appointment is terminated it means
that the probationer is unfit for the job, whether by reason of misconduct or ineptitude,
whatever the language used in the termination order may be. Although strictly speaking,
the stigma is implicit in the termination, a simple termination is not stigmatic. A
termination order which explicitly states what is implicit in every order of termination
of a probationer”s appointment, is also not stigmatic. Parvanendra Narayan Verma v.
Sanjay Gandhi P.G.I. of Medical Sciences, AIR 2002 SC 23: 2002(1) SCC 520: 2001(9)
JT 420: 2002(1) LLJ 690: 2001(8) SLR 722 (SC): 2002 AIRSCW 4616: 2002 Lab IC
113: 2001 All LJ 2807: 2002(1) AllWC 42: 2002(100) FJR 64: 2002(92) FLR 349:
2001(1) LLJ 690: 2002(1) Mad LJ 151: 2002(2) Mah LR 374: 2002(1) Pat LJR 204:
2002 SCC(L&S) 170: 2002(1) SLJ 336.
An employer would however, have no power to terminate an employee during
the period of probation, unless of course such a right has been reserved whether under
the appointment order itself or by any relevant Rules/Regulations relating to
appointment probation and confirmation of appointees. R. Swaminathan v. Manipal
Academy of Higher Education, 2002(2) SLR 467 Kar.
5. Removal for Misconduct or Inefficiency — If a probationer is discharged
on the ground of misconduct, or inefficiency or for similar reasons without a proper
enquiry and without his getting a reasonable opportunity of showing cause against his
discharge it may in a given case amount to removal from service within the meaning of
238 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
Art. 311(2) of the Constitution. Shamsher Singh v. State of Punjab, 1974 (2) SLR 701:
AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831; State of Maharashtra v.
Veerappa R. Sabaji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 Lab
IC 1389: 1979 (2) SLR 527: 1979 SLJ 621; Nepal Singh v. State of U.P., (1980) 2 SCJ
179: AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980
SLJ 711: 1980 (2) SLR 108; Ajaya Mohanty v. Union of India, 1981 (1) SLJ 552: 1982
(2) SLR 681.
For termination of service see Avinash Nagra v. Navodaya Vidyalaya Samiti,
1997(2) SCC 534: 1996(10) JT 461: 1996(8) AD(Delhi) 529: 1997(1) SLR 270: 1997
(1) SLR 270 (SC).
6. Reversion by Order Simpliciter — The very fact that a person is a
probationer implies that he has to prove his worth and suitability for the higher post in
which he is officiating. If his work is not found to be satisfactory, he is liable to be
reverted to his original post even without assigning any reason. High Court of Madhya
Pradesh through Registrar v. Satya Narayan Jhavar, AIR 2001 SC 3234: 2001(7) SCC
161: 2001(6) JT 368: 2001 Lab IC 3281: 2001 AIRSCW 3112: 2002(1) BLJR 450:
2001(91) FLR 626: 2002(1) JLJR 40: 2002(1) Jab LJ 103: 2002(1) Pat LJR 25: 2001
SCC (L&S) 1087: 2001(3) SCJ 135: 2001(3) SLR 645: 2001(2) UJ 1281. See also
Wasim Beg v. State of U.P., AIR 1998 SC 1291: 1998(2) JT 354: 1998(2) SLR 174 (SC).
Motive of Reversion may be Misconduct, Negligence or Inefficiency —
“Motive” is the moving power which impels action for a definite result, or to put it
differently, “motive” is that which incites or stimulates a person to do an act. An order
terminating the service of an employee is an act done by the employer. What is that
factor which impelled the employer to take this action. If it was the factor of general
unsuitability of the employee for the post held by him, the action would be upheld in
law. If, however, there were allegations of serious misconduct against the employee and
a preliminary enquiry is held behind his back to ascertain the truth of those allegations
and a termination order is passed thereafter, the order, having regard to other
circumstances, would be founded on the allegations of misconduct which were found to
be true in the preliminary enquiry. Chandra Prakash Shahi v. State of U.P., AIR 2000
SC 1706: 2000(5) SCC 152: 2000(5) JT 181: 2000(3) LLN 21: 2000(2) SLR 772 (SC).
Even if misconduct, negligence, inefficiency may be the motive or the inducing
factor which influenced the authority to pass the order of reversion, such reversion
cannot be termed as penalty or punishment. Union of India v P.S. Bhatt 1981(2) SCC
761: AIR 1981 SC 957: 1981 Lab IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981
SCC (Lab) 460: 1981(2) SCJ 65: 1981(2) SCWR 88.
When the order terminating the service referred to other communications which
contained stigmatic observations, it was held that the in view of language of letters
findings were part of the foundation of the impugned order and it was not a case of
mere motive and therefore the order of termination was set aside. Dipti Prakash
Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, AIR 1999 SC
983: 1999(3) SCC 60: 1999(1) SLR 622: 1999(1) LLJ 1054: 1999(1) SCJ 415: 1999
Lab IC 1114: 1999(2) LLN 44: 1999(81) FLR 687: 2000(96) FJR 607.
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 239
considered for promotion for a period of seven years. After considering material of
respondent, Governor cancelled part of the order which related to stoppage of
promotion. Order terminating probation was upheld. U.P. Subordinate Revenue
Executive Service (Tahsildars) Rules, Rule 14, State of U.P. v. Akbar Ali Khan, (1966)
II SCWR 701: AIR 1966 SC 1842: 1966(3) SCR 821: (1967) 2 SCJ 79.
Where even though there is a provision in the rules for initial probation and
extension thereof, a maximum period for such extension is also provided beyond which
it is not permissible to extend probation. Karnataka State Road Transport Corporation
v. S. Manjunath, AIR 2000 SC 2070: 2000(5) SCC 250: 2000(3) SLJ 270: 2000(4) SLR
539: 2000 Lab IC 1986: 2000(3) LLN 86: 2002(1) LLJ 910.
Where on a plain grammatical meaning being given to the words used in the
Rules, does not provide for a deemed confirmation on expiry of the maximum period of
probation, and on the other hand it contemplates a positive order of confirmation to be
passed by the Appropriate Authority, if the Authority concerned is satisfied about the
fitness of the probationer for confirmation, and if the probationer has passed the
departmental examination, as prescribed. It was held that mere continuance of the
probationer after considering his case for confirmation during the period of probation
and finding him unsuitable for confirmation by the decision of appointing authority by
no stretch of imagination can be construed to be a confirmation by implication. High
Court of Madhya Pradesh v. Satya Narayan Jhavar, AIR 2001 SC 3234: 2001(6) JT
368: 2001(7) SCC 161: 2001(3) SCJ 135
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 241
In one case the Petitioner was permanent resident of Tehsil Naraingarh. His
name was registered with the Employment Exchange at Naraingarh. He got his name
transferred from the Employment Exchange, Naraingarh to the Employment Exchange,
Chhachhrauli. At that time there was no objection raised at either end. Not only that,
when the occasion arose, the Employment Exchange, Chhachhrauli sponsored his name.
The petitioner has given his permanent address of Naraingarh but mentioned that he
was registered with the Employment Exchange, Chhachhrauli. Even at that time, there
was no objection from any side and the petitioner was selected. Held that it is not fair
on the part of respondents now to assert that the petitioner has indulged in using unfair
means. The petitioner had stated correct facts. It was for the respondent to raise
objection if any at the appropriate time but they did not do so and instead allowed the
petitioner to continue and complete his probation period of two years. It is too late in
the day for the respondents now to assert that the petitioner”s recommendation from the
Employment Exchange, Chhachhrauli was unfair. In fact, it would be unfair if now the
appointment of the petitioner to a class IV post is quashed. Karan Singh v. State of
Haryana, 2002(5) SLR 277 (SC).
The Punjab and Haryana High Court has however held that such termination of
probationer on the ground of unsatisfactory work is retrenchment. Punjab State Co-
operative Supply & Marketing Federation v. Presiding Officer, Labour Court, 2003 (2)
SLR 208 P&H. See also Jagtar Singh v. State of Punjab, 2003 (2) SLR 617.
242 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
15. Termination of Service for Unsuitability — Order did not cast any stigma
on appellant”s character or integrity nor did it visit him with any civil consequences.
Art. 311 is not attracted. It is immaterial that the order was preceded by an informal
enquiry with a view for ascertaining whether he should be retained in service. Ram
Gopal Chaturvedi v. State of M.P., AIR 1970 SC 158: 1970(1) SCR 472: 1969(2) SCC
240: (1970) 1 SCJ 257: 1969 SLR 429; Dr D.K. Gupta v. Union of India, 1977 (9) SLR
692: 1978 SLJ 277; Oil & Natural Gas Commission v. Dr. Md. S.Iskandar Ali, AIR
1980 SC 1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 SLJ 591:
1980 (2) SLR 792. The decision to terminate the services of a temporary Government
servant on ground of unsuitability in relation to the post held by him is not by way of
punishment and no stigma is attached to him by reason of the termination of his service.
Commodore, Commanding Southern Naval Area v. V.N. Rajan, 1981(3) SCR 165: AIR
1981 SC 965: 1981(2) SCC 636: 1981 Lab IC 605: 1981(1) SLR 656: 1981 SCC(Lab)
428: 1981(1) SCWR 388: 1981(2) SCJ 85; Lakshmaiah v. K.S.R.T.C., 1982 (2) SLJ 49:
1982 (2) SLR 170.
In one case charge sheet was issued to Probationer and summary inquiry was
held in the matter. The Inquiry Officer finding nothing more than inability of the
employee to meet the requirement of the post. Order of termination passed immediately
thereafter was held to be not stigmatic. Parvanendra Narayan Verma v. Sanjay Gandhi
P.G.I. of Medical Sciences, AIR 2002 SC 23: 2002(1) SCC 520: 2001(9) JT 420:
2002(1) LLJ 690: 2001(8) SLR 722 (SC): 2001 AIRSCW 4616: 2001 All LJ 2807:
2002(92) FLR 349: 2002(100) FJR 64: 2002(1) Mad LJ 151: 2002(2) Mah LJ 151:
2002(1) Pat LJR 204: 2002 SCC(L&S) 170: 2002(1) SLJ 336.
16. Termination of Service for Medical Unsuitability — Termination of
service on medical ground does not attract Art. 311. Jagannath Ghosh v. D.F.O., 1976
(1) SLR 243. The petitioner was performing and continues to perform his duties as
Assistant Lineman for a continuous period of five years. It could not be disputed that 25
per cent disability suffered by the petitioner had in any manner, affected him in
discharging his duties as Assistant Lineman. Held that the petitioner could not be given
a marching order. Baldev Singh v. Haryana State Electricity Board, 1999(3) SLR 608
P&H (DB).
After enactment of Persons with Disabilies (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 especially section 47 thereof termination of a
person who acquires medical disability is not permissible. It has been held that other
legislations must yield to this legislation and termination of service is not proper. Union
of India v. Hasan Khan, 2003 (3) SLR 144 Raj.
Under Section 2 (k) of Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995, the term establishment is defined
which reads as under:
2(k) “establishment” means a corporation established by or under a Central,
Provincial or State Act, or an authority or a body owned or controlled or aided
by the Government or a local authority or a government company as defined in
Section 617 of the Companies Act, 1956 (1 of 1956) and includes departments
of a Government;
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 243
general unsuitability of the employee for the post held by him, the action would be
upheld in law. If, however, there were allegations of serious misconduct against the
employee and a preliminary enquiry is held behind his back to ascertain the truth of
those allegations and a termination order is passed thereafter, the order, having regard
to other circumstances, would be founded on the allegations of misconduct which were
found to be true in the preliminary enquiry. Chandra Prakash Shahi v. State of U.P.,
AIR 2000 SC 1706: 2000(5) SCC 152: 2000(5) JT 181: 2000(3) LLN 21: 2000(2) SLR
772 (SC); See also Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd.,
2003 (3) SLR 150 (SC).
21. Form of Order not Decisive Whether Passed by Way of Punishment —
The form of the order is not decisive as to whether the order is by way of punishment.
Even an innocuously worded order terminating the service may in the facts and
circumstances of the case establish that it was passed by way of punishment and is in
infraction of provisions of Art. 311. Shamsher Singh v. State of Punjab, 1974 (2) SLR
701: AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831; State of Punjab v.
Prakash Singh, AIR 1975 SC 1096: 1975 SLJ 499: 1975 (2) SLR 85; State of
Maharashtra v. Veerappa R. Saboji, AIR 1980 SC 42: 1979 Lab IC 1389: 1979 (2) SLR
527: 1979 SLJ 621; Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980 Lab IC 747:
1980 SLJ 711: 1980 (2) SLR 108; Ajaya Mohanty v. Union of India, 1981 (1) SLR 785:
(1981) 2 SLJ 552; Muralidhar Yeshwant Mayenkar v. Union of India, 1982 (1) SLJ 699:
1982 (2) SLR 482: 1983 Lab IC 62; Mathew P. Thomas v. Kerala State Civil Supply
Corporation Ltd., 2003 (3) SLR 150 SC.
The form of order is not conclusive of its nature and it might be a cloak of
deceive for an order founded on misconduct. S.R. Tiwari v. District Board of Agra, AIR
1964 SC 1680: 1964(2) SCJ 300: (1964) 3 SCR 55. It may be noted that an order which
is innocuous on the face and does not contain any imputation of misconduct is a
circumstance or a piece of evidence for finding whether it was made by way of
punishment or administrative routine. But the entirety of circumstances preceding or
attendant on the impugned order must be examined and the overriding test will always
be whether the misconduct is a mere motive or is the very foundation of the order. State
of Bihar v. Shiv Bhikshuk, (1970) II SCWR 606; 1970 SLR 63: AIR 1971 SC 1011:
1971(2) SCR 191: 1970(2) SCC 871; Union of India v. R.S. Dhaba, (1969) 1 SCWR
922: 1969 Cur LJ 461; R.K. Bhat v. Union of India, (1970) II SCWR 667: 1970 Cur LJ
924; Sarju Singh v. Additional District Magistrate, 1973 (2) SLR 90; State of U.P. v.
Bhoop Singh Verma, AIR 1979 SC 684: 1979(2) SCR 1126: 1979(2) SCC 111: 1979 (2)
SLR 28; Nepal Singh v. State of U.P., (1980) 2 SCJ 179: AIR 1980 SC 1459: 1980(3)
SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108.
22. Termination of Service Order Simpliciter — No reasons given for
termination of services. Order is one simpliciter and not by way of punishment. State of
Nagaland v. G. Vasantha, AIR 1970 SC 537: 1970 SLR 637: 1970 Lab IC 419;
Parshuram v. Union of India, 1974 SLJ 626; Oil & Natural Gas Commission v. Dr. Md.
S. Iskandar Ali, 1980 SLJ 591: 1980 (2) SLR 792: AIR 1980 SC 1242; Union of India
v. P.S. Bhatt, (1981) 2 SCJ 65: 1981 (1) SLJ 212 (SC): 1981 (1) SLR 370: AIR 1981
SC 957; Murlidhar Yeshwant Mayenkar v. Union of India, 1982 (1) SLJ 699: 1982 (2)
SLR 482: 1983 Lab IC 62.
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 249
If the inquiry officer held no sittings, did not take evidence nor record any
conclusions and if at that stage the inquiry was dropped and a simple order of
termination was, passed, the same would not be punitive. Radhey Shyam Gupta v. U.P.
State Agro Industries Corporation Ltd., AIR 1999 SC 609: 1999 (1) SLR 44 (SC): 1999
(2) SCC 21: 1998 (8) JT 585: 1999 (1) LLJ 432: 1999 (2) LLN 57: 1999 (1) FLR 475:
1999 (95) FJR 93: 1999 (3) SLJ 100; See also Shailaja Shivajirao Patil v. President
Hon. Khasdar UGS Sanstha, 2002(1) SLR 371 (SC): 2002(1) JT 431; relying upon
Pavenendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences, AIR 2002
SC 23: 2001(1) SCC 520: 2001(9) JT 420 (SC): 2001 AIRSCW 4616: 2001 All LJ
2807: 2002(1) All MR 302: 2002(1) All WC 42: 2002(1) Andh LD 81: 2002(100) FJR
64: 2002(92) FLR 349: 2002(1) Mad LJ 151: 2002(2) Mah LR 374: 2002(1) Pat LJR
204: 2002 SCC (L&S) 170: 2002(2) SLJ 336: 2001(8) SLR 722.
(i) The Court has power to look into entirety of circumstances preceding or
attendant on the order of termination. K.H. Phadnis v. State of Maharashtra, AIR 1971
SC 998: 1971 Supp SCR 118: 1971(1) SCC 790: 1971 (2) SLR 345: (1973) 1 SCJ 420;
State of Bihar v. Shiva Bhikshuk Mishra, AIR 1971 SC 1011: 1971(2) SCR 191:
1970(2) SCC 871: (1971) 2 SCJ 68: 1970 SLR 863; Jagdish Prasad v. State of U.P.
(1971) 2 SCJ 409: AIR 1971 SC 1224: 1971(2) SCR 583: 1970(3) SCC 631: 1970 SLR 938;
A.M. Rode v Principal, Government Degree College, 1973 SLJ 710: 1973 (2) SLR 574.
(ii) Where the order is ex facie an order of termination of service simpliciter, it
does not cast any stigma on the respondent nor does it visit him with evil consequences
not it is founded on misconduct, in the circumstances the respondent could not invite
the Court to go into the motive behind the order. The Court would not delve into
Secretariat files to discover whether some kind of stigma could be inferred on such
research. State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1977(1) SCR 462:
1976(4) SCC 52: 1976 Lab IC 1647: 1976 SLJ 583: 1976 (2) SLR 859.
(iii) Where a charge of unfair discrimination is levelled with specificity, or
improper motives are imputed to the authority making the impugned order of
termination of service, it is the duty of authority to dispel that charge by disclosing to
the Court the reason or motive which impelled it to take the impugned action. Manager,
Govt. Press v. D.B. Belliappa, AIR 1979 SC 429: 1979(2) SCR 458: 1979(1) SCC 477:
1979 Lab IC 146: 1979 SLJ 233: 1979 (1) SLR 351. Also see State of Maharashtra v.
Veerappa R. Saboji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 Lab
IC 1389: 1979 (2) SLR 527: 1979 SLJ 621; Nepal Singh v. State of U.P., AIR 1980 SC
1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2)
SLR 108.
(iv) In Comm. Commanding, Southern Naval Area v. V.N. Rajan, AIR 1981 SC
965: 1981(3) SCR 165: 1981(2) SCC 636: (1981) 2 SCJ 85: 1981 (1) SLR 656: 1981 (2)
SLJ 48, the Supreme Court looked into the file and found that the impugned order was
not by way of punishment and no stigma attached to the respondent.
(v) Having gone through the file relating to the termination of service of the
petitioner, High Court came to the conclusion that the impugned order is founded on
allegations of misconduct and negligence of duty. Held, the provisions of Art. 311 of
the Constitution were clearly attached and it was not open to the authorities to have
250 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
terminated the service by giving the order a cover of termination simpliciter. Ajaya
Mohanty v. Union of India, 1981 (1) SLR 785: 1981 (1) SLJ 552; Bhavansinh Raysinhji
Rathod v. State Transport Corporation, 1981 (2) SLR 622.
(vi) The order may be a motive and not a foundation as a ground for dismissal.
During the period of probation, the authorities are entitled to assess the suitability of
the candidates and if it is found that the candidate is not suitable to remain in service
they are entitled to record a finding of unsatisfactory performance of the work and
duties during the period of probation. Under these circumstances, necessarily the
appointing authority has to look into the performance of the work and duties during the
period of probation and if they record a finding that during that probation period, the
work and performance of the duties were unsatisfactory, they are entitled to terminate
the service in terms of the letter of appointment without conducting any enquiry. That
does not amount to any stigma. Kunwar Arun Kumar v. Uttar Pradesh Electronics
Corporation Ltd., 1996 Supp (8) SCR 19: 1997(2) SCC 191: 1997(1) LLN 570: 1997(1)
SLR 136: 1997(1) SLJ 234: 1997(91) FJR 55: 1997(3) LLJ 791.
Also see Notes 18 and 53.
23. Appointment and Termination without Approval — Respondent was
appointed by District Council without approval of Governor. District Council
terminated his services without approval of Governor. Held, the respondent cannot
complain that his termination by the very Council without Governor”s sanction is
invalid. H. Lyngdoh v. Cromlyn Lyngdoh, AIR 1971 SC 1110: 1971(3) SCR 903:
1971(1) SCC 754: 1971 (2) SLR 330 (SC).
24. Termination of Service Under Sub-rule (1) of Rule 5 of the Central
Civil Services (Temporary Service) Rules, 1965 — Sub-rule (1) of Rule 5 provides:—
“(1) (a) The services of a temporary Government servant who is not in quasi-
permanent service shall be liable to termination at any time by a notice in writing given
either by the Government servant to the appointing authority or by the appointing
authority to the Government servant;
(b) The period of such notice shall be one month:
Provided that the service of any such Government servant may be terminated
forthwith and on such termination the Government servant shall be entitled to claim a
sum equivalent to the amount of his pay plus allowances for the period of notice at the
same rates at which he was drawing them immediately before the termination of the
service, or as the case may be, for the period by which such notice falls short of one
month.”
Termination of Services
25. According to Service Rules — The services of a temporary Government
servant can be terminated in accordance with the rules applicable to temporary
government servants. Where the order terminating the service on the face of it flows
from a right to terminate service under the rules of service and it does not cast any
stigma upon the employee and is made on an overall assessment of service record and it
is found that the employee is not fit to be confirmed, the provisions of Art. 311 are not
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 251
at all attracted. State of U. P. v. Tilak Singh, 1975 SLJ 94: 1975 Lab IC 1021: 1976 (1)
SLR 129; State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1977(1) SCR 462:
1976(2) SCC 52: 1976 SLJ 583: 1976(2) SLR 859: 1976 Lab IC 1647. See also Avinash
Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1996(8)
AD(Delhi) 539: 1997(1) SLR 270: 1997 (1) SLR 270 (SC); Coir Board, Ernakulam,
Cochin v. Indira Devi, AIR 1998 SC 2801: 1998(3) SCC 259: 1998(2) JT 332: (1998) 1
SCJ 405.
26. Authority which can Terminate Service — (i) The dismissal by an
authority other than the appointing authority by virtue of any delegation was
permissible in law provided the dismissal was not by an authority subordinate to the
authority which appointed a civil servant. State of U.P. v. Ram Nareshlal, AIR 1970 SC
1263: 1970(3) SCC 173: 1970 Lab IC 1063: 1970 SLR 819; Krishna Kumar v.
Divisional Asst. Electrical Engineer, 1979 SLJ 532: 1979 (2) SLR 291: AIR 1979 SC
1912: 1980(1) SCR 50: 1979(4) SCC 289: 1979 Lab IC 1314: (1980) 1 SCJ 183.
(ii) In relation to a temporary Government servant not holding a specified post,
the termination of service is to be made by the authority which appointed him. Om
Prakash Gupta Swadheen v. Union of India, AIR 1975 SC 1265: 1976(1) SCC 594:
1975 Lab IC 813: 1975 (2) SLR 226: 1975 SLJ 675; Mohinder Singh v. State of H.P.,
1976 (1) SLR 555; Ramanand Singh v. State of Bihar, 1982 (1) SLR 693 (SC).
Termination of service of an employee after 8 years of service by an authority
who below the rank of appointing authority was held bad in law and order of
termination was set aside. Mahendra Singh v. State of U.P., 2003 (3) SLR 707 All.
27. After 15 Years Service with Stigma — Chief Minister made statement in
Legislative Assembly, in answer to a question, “It is true that having put in 15 years of
temporary service he is entitled to pension but on the other hand since his service was
not satisfactory he can be removed on one month”s notice. On re-consideration of the
matter the Government feels that he should be served show cause notice. Therefore, the
Government reconsidered the matter.” Held, the Chief Minister”s statement did cast
stigma on his character. Order terminating service and not allowing pension quashed.
Madan Mohan Prasad v. State of Bihar, AIR 1973 SC 1133: 1973(3) SCC 166: 1973
Lab IC 918: 1973 (1) SLR 630: 1973 SLJ 349.
28. For not Joining Duty After Transfer — Appellant, a temporary
employee, was transferred. He did not immediately join duty at new place and applied
for leave. Even after expiry of leave he did not join duty but applied for leave. Without
proceeding to take disciplinary action, his service was terminated. Order held violative
of Art. 311(2). N. Yellaih Swamy v. Director of Industries, 1971 (1) SLR 730 (AP).
Similar view was taken in B.M. Tripathi v State of U.P., 1971 (2) SLR 738 (All): AIR
1971 All 346; Krishanlal Dhirajlal Vyas v. Oil & Natural Gas Commission, 1981 (1)
SLJ 124.
29. For Absence or Overstaying Leave — Punishment without show cause is
illegal that being in contravention of Art. 311 of Constitution. M.M.Joseph v. Union of
India, 1979 (3) SLR 434; State of Rajasthan v. Mangal Singh, 1981 (1) SLJ 173.
252 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
without any special reason which could put him in a class separate from that of his three
juniors, who had been retained in service. The protection under Articles 14 and 16(i)
will be available to such a temporary Government servant.
After the judgment of Supreme Court in D.B. Belliappa”s 1979(2) SCR 458:
1979(1) SCC 477: AIR 1979 SC 429: 1979 Lab IC 146: 1979(1) SLR 351: 1979
SCC(Lab) 39: 1979 RLR 209: 1979 BBCJ (SC) 11: 1978 SLC 290: 1978(2) SCWR 359:
1978 SLWR 454 a case was referred to a Division Bench of Punjab and Haryana High
Court in Krishan Chand Goyal v. Punjab State, 1980 (2) SLR 623 in view of the earlier
Full Bench judgment in Y.K. Bhatia”s case referred to (supra). After considering
various judgments of the Supreme Court and D.B. Belliappa”s case (supra) it has been
held by the Division Bench:—
(i) The fact that the service of temporary Government servant is terminated,
either in accordance with the conditions of appointment or service rules, while his
juniors are retained in service per se would not prove unequal treatment nor would it be
violative of Articles 14 and 16 of the Constitution.
(ii) If in a given case the temporary Government servant is able to show that
the simple order of termination of service in accordance with the terms of appointment
or service rules was actuated by improper motive or on charge of unfair discrimination
specifying the facts in that regard and those facts are either not controverted or stand
proved, then that simple order of termination of services may be quashed by a Court of
law even if he was the junior most.
Where the plantiff”s case was on the ground that since persons junior to him
were kept in service on the abolition of the post, the order of termination was arbitrary
and violative of Article 16 of the Constitution but he never pleaded any other ground of
unfair indiscrimination or improper motive for the termination of his services, it was
held that his suit was liable to be dismissed. Union of India v. Prakash Lal, 1980 (2)
SLR 596 (P&H).
Division Bench of Patna High Court in Subhash Chandra Chaudhary and
Jamuna Ram v. Bihar State Warehousing Corporation, 1980 (2) SLR 760, deduced the
following principles:—
(i) A temporary employee”s service can be dispensed with under the terms of
contract of employment although his juniors may be retained if it can be shown that the
juniors were not similarly placed as the person whose service has been dispensed with
on account of misconduct or inefficiency or since he was standing as a class by himself.
(ii) In such cases (as above), however, it would be incumbent upon the
authority to satisfy the Court that persons junior to the person, whose services have
been terminated, do not stand at par with or have better service record than, the person
impugning the order of termination.
(iii) There can be no hard and fast rule nor any abstract proposition of law for
the purpose of determining as to whether the order of termination is a termination
simpliciter or by way of punishment. It would depend upon the facts and circumstances
254 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
of each case as to whether it can be deduced that the order of termination is by way of
penalty or not.
(iv) The motive behind the order of termination is not always germane or
relevant for the purpose of determining as to whether an order innocuous in form can be
dubbed as being an order of termination by way of punishment. Actually the substance
and not merely the form of the order is relevant.
See also Dhananjay v. Chief Executive officer, Zilla Parishad, Jalna, 2003 (2)
SLR 298 Ajaya Mohanty v. Union of India, 1981 (1) SCR 785: 1981 (2) SCR 681 1981
(1) SLJ 552; Dr. S.C. Kaushik v. Union of India, 1981 (1) SLR 214.
The appellant was suspended and served with charge sheet. However before
this a notice was served abolishing all posts in the deptt. Disciplinary proceedings did
not proceed further and after about two years on the representation of the appellant,
Government ordered that the disciplinary action against him would be treated as closed.
Held, the appellant was employed in a deptt. which has since been abolished and with
the abolition of the deptt., his claim to hold any post in the deptt. must fail. Gurdeep
Singh v. Union of India, 1982(1) SCC 505: AIR 1982 SC 1176: 1982 Lab IC 1489:
1982(2) LLJ 184: 1982(45) FLR 330: 1982(2) SLJ 380: 1982 SCC (Lab) 113: 1982 LS
(SC) 54.
It is no doubt true that Art. 38 and Art. 43 of the Constitution insist that the
state should endeavour to find sufficient work for people so that they may put their
capacity to work into economic use and earn a fairly good living. But these Articles do
not mean that everybody should be provided with a job in the Civil Service of the State,
and if a person is provided with one, he should not be asked to leave it even for a just
cause. The question whether a person who ceases to be a Government servant according
to law, should be rehabilitated by giving an alternative employment, as the law stands
today, a matter of policy on which the Court has no voice. K. Rajindran v. State of
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 255
Tamil Nadu, AIR 1982 SC 1107: 1982(3) SCR 628: 1982(2) SCC 273: 1982 Lab IC
876: 1982 (1) SLJ 604: 1982 (2) SLR 196.
32. By Authority Subordinate to the Appointing Authority — The
respondent was appointed and confirmed by the Chairman of the Board of Control. The
Board of Control abolished the post. Chairman, Board of Administration served the
notice of termination on the respondent terminating his employment at the expiry of
three months. Chairman of the Board of Administration is under the control of the
Board of Control which is a superior authority. The notice of termination was vitiated
because it was issued by an authority which was subordinate to the authority which
appointed the respondent. Union of India v. Vigian Bhushan Aggarwal, 1983 (1) SLJ 77.
33. Termination by Authority not Competent — Termination of services by
a person who is not a competent authority is illegal. Madan Lal Datta v. State of
Haryana, (1983) 1 SLR 548 (P & H).
Under the rules made under the Punjab Agricultural Produce Market Act, it is
the State Agricultural Marketing Board which is competent to terminate the services of
its employees. Hence termination of services by the Secretary of the Board is not valid.
A person whose services are illegally terminated is entitled to reinstatement and also to
back wages. Balwant Singh v. State of Haryana, (1983) 1 SLR 273, 274, Paras 5 and 6
(P&H).
34. On Overall Assessment of Service Record — Termination of service on
an overall assessment of service record, when it is found that the temporary
Government servant is not fit to be confirmed in service, does not amount to
punishment of dismissal or removal under Art. 311. State of U. P. v. Tilak Singh, 1975
SLJ 94: 1975 Lab IC 1021: 1976 (1) SLR 129; R.K. Gupta v. State of U.P., 1977 (2)
SLR 78.
Merely because the adverse remarks have been communicated and the adverse
remarks related to indiscipline and quarrelsome nature of the petitioner, it cannot be
contended that the termination was by way of punishment. M. Rahtinavelu v. R.C.
Khanna, 1980 (2) SLR 38.
35. Services no Longer Required — The services of petitioner were
terminated as these were no longer required. Services were not terminated by way of
punishment. Provisions of Art. 311 not attracted (as per Chet Ram Thakur, J). Roop Lal
v. State, 1972 Simla LJ 387: AIR 1973 HP 14; Malti Heera v. State of Punjab, 1973
SLJ 416: 1973 (1) SLR 769; State of U.P. v. Bhoop Singh Verma, AIR 1979 SC 684:
1979(2) SCR 1126: 1979(2) SCC 111: 1979 (2) SLR 28; State of Maharashtra v. V.G.
Koppar, AIR 1981 Bom 131; Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980(3)
SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108:
(1980) 2 SCJ 179.
Termination of services on mere involvement in a criminal case would be too
hazardous and slander a consideration which can justify such a decision. Pradyuman
Singh Indrasinh v. State of Gujarat, 1982 (2) SLR 650: 1983 Lab IC 123. See also
Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461:
1996(8) AD(Delhi) 529: 1997 (1) SLR 270 (SC).
256 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11
36. With Stigma — Where the impugned order while terminating the services
of the petitioner has described him as “at present under suspension”, on the face of it,
the impugned order leaves the stigma on the petitioner that he is a suspended officer,
and any future employer may reasonably think that the petitioner must have been
suspended in service on some serious allegations and may refuse employment to the
petitioner on that ground alone. The impugned order, though passed under Rule 5(1) of
the Temporary Service Rules, 1965, carried an indelible stigma and order held violative
of Art. 311(2) of the Constitution. N.B.Chakraborty v. Union of India, AIR 1970 A&N 98.
39. Reason, if Assigned must be Valid — The Government can terminate the
services of a temporary employee by giving him one month”s notice without assigning
any reason but where reason is assigned, it must be shown to be a valid reason. Jagdish
Chand Pant v. State of U.P., 1973 SLJ 451: 1974 (2) SLR 208. See also Avinash Nagra
v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1996(8) AD(Delhi)
529: 1997(1) SLR 270: 1997 (1) SLR 270 (SC).
report of police verification merely stated that the respondent was unsuitable for
employment under the Government. The respondent protested that there was no basis
for such report. Held, in the facts and circumstances of this case, no prejudice would be
caused to the State authorities if the gist or the extract of the report so far as the same is
against the respondent is made known, and he is given an opportunity to make
representation, if any, against such report on the basis of subjective facts and data. State
of West Bengal v. Madan Mohan Bag, 1977 SLJ 677; Kalluri Vasayya v. Supdt. of Post
Offices, 1980 (2) SLR 433: 1982 Lab IC 1143.
Also see Rules 8 and 9, Note 62.
57. Termination of Service Forthwith : Whether Notice to be Issued with
the Order of Pay — The rule does not say that the pay should be given in cash or
cheque at the time of the notice is issued. Supreme Court decisions in Senior
Superintendent, R.M.S. v. R.V.Gopinath, AIR 1972 SC 1487: 1972(3) SCR 530: 1973(3)
SCC 867: (1973) 1 SCJ 28: 1972 SLR 390; Raj Kumar v. Union of India, 1975 (1) SLR
1: 1975 SLJ 86 no longer good law in view of amendment to proviso to Rule 5(1) of
CCS (Temporary Service) Rules, 1965. Raj Kumar v. Union of India, AIR 1975 SC
1116: 1975(3) SCR 963: 1975(4) SCC 13: 1975 SLJ 615: 1975 (1) SLR 774: 1975 Lab
IC 669; Ramesh Chandra Singh v. Union of India, 1981 (2) SLR 267.
58. Notice sent by Registered Post, Avoiding of — Notice terminating service
was sent to officer by registered post at the leave address but the service was
deliberately avoided. It may be treated effective service. Nilendu Bhusan Chakravarty
v. Union of India, 1975 (1) SLR 149.
59. Termination of Service by Way of Punishment — Services of a
temporary servant cannot be terminated by way of punishment without complying with
the provisions of Art. 311. Union of India v. P.K. More, AIR 1962 SC 630: 1961(2) LLJ
427: 1961(3) FLR 323: 1961-62(21) FJR 5; Sukhbans Singh v. State of Punjab, AIR
1962 SC 1711: 1963(1) SCR 416: 1963(1) LLJ 671; Malti Heera v. State of Punjab,
1973 SLJ 416.
In Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3)
SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108, R.S. Pathak, J. observed:
“It is now well settled law that an order terminating the service of a temporary
Government servant and ex facie innocuous is that it does not cast any stigma on the
Government servant or visits him with penal consequences must be regarded as
effecting a termination simpliciter, but if it is discovered on the basis of material
adduced that although innocent in its terms the order was passed in fact with a view to
punishing the Government servant, it is a punitive order which can be passed only after
complying with Art. 311(2) of the Constitution. The scope of the enquiry called for in
such a case has been outlined by one of us in State of Maharashtra v. Veerappa R.
Saboji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 Lab IC 1389: 1979
(2) SLR 527: 1979 SLJ 621. But the question which calls for determination in all such
cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an
order is not passed by way of punishment, and is merely an order of termination
simpliciter, if the material against the Government servant on which the superior
authority has acted, constitutes the motive and not the foundation for the order. The
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 261
application of the test is not always easy. In each case it is necessary to examine the
entire range of facts carefully and consider whether in the light of those facts the
superior authority intended to punish the Government servant or, having regard to his
character, conduct and suitability in relation to the post held by him. It was intended
simply to terminate his service. The function of the Court is to discover the nature of
the order by attempting to ascertain what was the motivating consideration in the mind
of the authority which prompted the order.” See also, Ajaya Mohanty v. Union of India,
1981 (1) SLJ 552: 1981 (1) SLR 785: 1981 (2) SLR 681; Murlidhar Yeshwant
Mayenkar v. Union of India, 1983 Lab IC 62: 1982 (1) SLJ 699: 1982 (2) SLR 482;
Padam Prasad Sharma v. S.N.T., 1982 (1) SLJ 431.
When employee is appointed on a project and for the duration of that project,
the question of his services continuing automatically thereafter do not arise. IRCON
International Ltd. v. Daya Shankar, AIR 2002 SC 2404: 2002(9) SCC 691: 2001(10) JT
360: 2002 AIRSCW 2620: 2002 Lab IC 2319: 2002(1) LLJ 548: 2002(3) ESC 16:
2002(1) SLR 563 (SC). When the posts temporarily created for fulfilling the needs of a
particular project or scheme limited in its duration come to an end on account of the
need for the project itself having come to an end either because the project was fulfilled
or had to be abandoned wholly or partially for want of funds, the employer cannot by a
writ of mandamus be directed to continue employing such employees as have been
dislodged because such a direction would amount to requisition for creation of posts
though not required by the employer and funding such posts though the employer did
not have the funds available for the purpose. Rajendra v. State of Rajasthan, AIR 1999
SC 923: 1999(2) SCC 317: 1999(1) JT 278: 1999(1) SLR 636 (SC).
62. With Retrospective Effect — Order discharging the services from the date
of order with super-added direction that the order should operate retrospectively as
from anterior date. Even if the super-added part is invalid, it does not affect the other
part. Gujarat Mineral Development Corp. v. P.H. Brahmbhatt, 1974 SLJ 272. An order
of termination of service, as is well known, takes effect from the date of
communication. The petitioner”s services could not have been terminated after he had
superannuated from his service. Kanti Bhusan Naha v. W.B.S.E., 1999(1) SLR 308 Cal.
63. Termination of Service of Employee on Work Charged Establishment
for Misconduct — The termination of service of temporary employee on work-charged
establishment for misconduct without following the procedure laid down in Part VI of
CCS (CCA) Rules and complying with the provisions of Art. 311 of the Constitution is
invalid and liable to be quashed. Murlidhar Yeshwant Mayenkar v. Union of India, 1982
(1) SLJ 699: 1982 (2) SLR 482: 1983 Lab IC 62.
64. Termination of Service of Employee on Contract, as Penalty —Unless a
contrary intention appears from the contract, a power to appoint should include a power
to terminate the appointment, including termination of the person appointed by his
compulsory retirement in accordance with the terms and conditions of his service. The
fundamental principle underlies Section 16 of the General Clauses Act which reads
as under:
16. Power to appoint to include power to suspend or dismiss.—Where,
by any Central Act or Regulation, a power to make any
appointment is conferred, then, unless a different intention
appears, the authority having for the time being power to make the
appointment shall also have power to suspend or dismiss any
person appointed whether by itself or any authority in exercise of
that power.
Relying on this provision it has been held that the power to appoint carries with
it the power to terminate the appointment. S.R. Tiwari v. District Board, Agra, 1964(3)
SCR 55: AIR 1964 SC 1680: 1964(2) SCJ 300: 1966(13) FLR 104; State of Tamil Nadu
v. M.N. Sundarajan, 1980 (3) SLR 451: 1981(1) SLJ 36. But the services of an
employee on contract cannot be terminated for misconduct, negligence or as penalty
unless prescribed procedure is followed. Madan Gopal v. State of Punjab, AIR 1963 SC
531: (1963) 3 SCR 716: 1964(1) LLJ 68; State of Bihar v. Gopi Kishore Prasad, AIR
1960 SC 689: 1960(1) LLJ 577: 1959-60(17) FJR 390.
The cases of termination/dismissal of a servant are put in three broad heads.
The first head relates to relationship of master and servant governed purely by contract
of employment. Any breach in such a case is enforced by a suit for wrongful dismissal
and damages. Breach of contract of employment is not capable of finding a declaratory
judgment of subsistence of employment. The second type of cases of master and servant
arises under Industrial Law, under which a servant wrongfully dismissed, may be
reinstated under the circumstances provided therein. The third category of cases of
master and servant arises in regard to the servant in the employment of the State or of
other public or local authorities or bodies created under statute. Courts in appropriate
cases have declared the dismissal invalid and that the employee continues to be in
R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 263
service. See Monmatha Nath Vyakaram Sastri v. State of Meghalaya, 1982 (2) SLJ 142;
U.P.State Warehousing Corporation v. Chandra Kiran Tyagi, AIR 1970 SC 1244:
1970(2) SCR 250: 1969(2) SCC 838: 1969 SLR 799: 1970 Lab IC 1044; Arya Vidya
Sabha Kashi v. Krishan Kumar Srivastava, AIR 1976 SC 1073: 1976(3) SCC 83: 1976
Lab IC 698; Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain,
AIR 1976 SC 888: 1976(2) SCR 1006: 1976(2) SCC 58: 1976(1) SLR 213: 1976 Lab IC
576; Smt. J. Tiwari v. Smt. Jwala Devi Vidya Mandir, AIR 1981 SC 122: 1979(4) SCC
160: 1979(1) SLR 614.
Where the appointment was on contractual basis and services were terminated
on the expiry of period of contract, it was held that the termination was neither the
retrenchment nor was illegal. District Animal Husbandry Officer v. Judge, Labour
Court, 2003 (1) SLR 786 Raj; Termination after completion of project is also held to
valid. Surendra Kumar Sharma v. Vikas Adhikari, 2003 (3) SLR 601 SC.
(ii) In Raja Zutshi v. Union of India, 1975 SLJ 4: 1975 (1) SLR 311, it was
held that where an officer under contract service holds a civil post his service cannot be
terminated in violation of Art. 311.
Dhingra v. Union of India, AIR 1958 SC 36: 1958 SCR 828: 1958 SCJ 217: 1958(1)
LLJ 544; see other views in State of U.P. v. Kedar Nath Pande, 1970 Lab IC 131.
President or the Governor as the case may be. Director General of Ordnance Services
v. P.N. Malhotra, AIR 1995 SC 1109: 1995(1) SCR 676: 1995 Supp (3) SCC 226:
1995(1) SLR 720: 1995(30) ATC 630: 1995(2) SLJ 183: 1995 Lab IC 1359: 1995(2)
LLJ 754: 1996(1) LLN 292
DISCIPLINARY AUTHORITIES
R. 12
(a) except where the penalty specified in clause (v) or clause (vi) of
Rule 11 is imposed by the Comptroller and Auditor-General on a
member of the Indian Audit and Accounts Service, no penalty specified
in clause (v) to (ix) of that rule shall be imposed by any authority
subordinate to the appointing authority;
COMMENTARY
SYNOPSIS
1. Power of appointment carries with power to impose penalties ..................................... 269
2. Authority who can dismiss or remove from service ...................................................... 269
3. Authority of head of office ............................................................................................. 270
4. Appointing authority can not delegate its power of dismissal ....................................... 271
5. Delegation of power to remove an employee ................................................................ 271
6. Officer-in-charge of current duties ................................................................................ 272
7. Rule 12 (3), supplementary to Rule 12 (2) .................................................................... 272
8. Government can confer power of dismissal on other officer ......................................... 272
9. Dismissal or removal by authority subordinate to that by which he was appointed ...... 272
10. Provincial Government to make appointment but appointment made by Commandant
General: Dismissal by Commandant General not void .................................................. 273
11. Power of authority subordinate to appointing authority ................................................ 273
12. Authority subordinate— Subordination is of rank and not of functions ........................ 273
13. Punishment by Delegate Subordinate in Rank ............................................................... 274
14. Illustrative cases —
(1) Commissioner Appointing Authority : Revision by Deputy Commissioner Illegal . .274
(2) General Manager Appointing Authority : Removal by Asst. General Manager
Illegal ............................................................................................................................. 274
(3) Chief Electrical Engineer Appointing Authority : Removal by Divisional Assistant
Engineer : Unconstitutional ............................................................................................ 274
(4) Director of Industries Appointed Instructor : Removal by Principal of Institute ...... 275
(5) Director of Health Service Being Appointing Authority : Removal by Civil
Surgeon (D.M.P.) Set Aside ........................................................................................... 275
(6) Lekhpal under U.P. Lekhpal Service Rules, 1958 .................................................... 275
(7) Superintendent of Police ........................................................................................... 275
(8) Inspector General under Central Reserve Police Force Rules, 1955......................... 276
(9) T.N. Police Subordinate Services (Discipline and Control) Rules, 1955 .................. 276
15. Exercise of power of President and Governor to dismiss public servant ....................... 276
16. Order under Article 77 or Article 166: Validity cannot be questioned .......................... 276
17. Promotion by higher authority, dismissal by authority lower in rank to promoting
authority ........................................................................................................................ 277
18. Order by authority superior to punishing authority ....................................................... 277
19. Order of officer superior to appointing authority .......................................................... 278
20. Disciplinary jurisdiction over members of State Judicial Service ................................. 278
21. Superintendent of Police or District Superintendent of Police ...................................... 279
22. Superintendent of Police not subordinate to Senior Superintendent of Police ............... 279
R. 12] PENALTIES AND DISCIPLINARY AUTHORITIES 269
Article 311 does not provide that a member of a civil service or a person
holding a civil post either under the Union or a State cannot be dismissed or removed
by an authority except the appointing authority. Held that there is no requirement that
the authority which takes disciplinary action must continue to have the power of
making appointment to the civil service or on a civil post under the Union or a State. It
can be any other authority so long as it is not subordinate in rank or grade to the
authority by which the delinquent Government servant was appointed. That is the only
requirement of Article 311 and nothing more can be read into it. Jai Jai Ram v. Uttar
Pradesh State Road Transport Corporation, AIR 1996 SC 2289: 1996(4) SCC 727:
1996(6) JT 463: 1996 SCC(L&S) 1071: 1996 Lab IC 2034: 1996(2) LLJ 729: 1996(3)
SLJ 15: 1996(5) SLR 141: 1996(74) FLR 2016: 1996(2) LLN 465.
On a reference to Rule 2(a) and Rule 9 of the Railway Servants (Discipline and
Appeal) Rules, it was held that it would be impossible for the President to deal with all
the disciplinary matters of the Government employees. Therefore, delegation of
appointment power was made to the General Manager and disciplinary power was
delegated to the Divisional Manager. The General Manager in not the delegator.
Consequently, the doctrine that a delegator cannot further delegate his powers to the
delegate has no application. As a result, it was held that the delegation of power to
impose appropriate punishment is permissible. Union of India v. N.V. Phaneendran,
1995 Supp (3) SCR 141: 1995(6) SCC 45: 1995(31) ATC 431: 1995(5) SLR 260
SCC 39: 1997(2) SLR 580: 1997(76) FLR 233: 1997(2) SCJ 172: 1997 Lab IC 2652:
1998(1) LLJ 1058: 1998(1) SLJ 44: 1998(3) LLN 24.
For the penalties in relation to Rule 11 of the CCS (CCA) Rules are as
mentioned in items (i) to (ix), the authority competent to impose the penalty is the Head
of the Office. As a result, the Head of Office, namely, the Assistant Manager was held
to be the competent authority to appoint. Once he is the competent authority to appoint,
he is equally, the competent authority to impose the penalty. Himachal Road Transport
Corporation v. Kewal Krishan, AIR 1997 SC 2667: 1997(9) SCC 39: 1997(2) SLR 580:
1997(76) FLR 233: 1997(2) SCJ 172: 1997 Lab IC 2652: 1998(1) LLJ 1058: 1998(1)
SLJ 44: 1998(3) LLN 24.
4. Appointing Authority Cannot Delegate its Power of Dismissal — (i)
Appointing authority cannot delegate its power of removal or dismissal of a
Government servant. Balbir Singh v. State of Punjab, AIR 1970 Punj 459.
(ii) Where President or Governor is the appointing authority the decision of
minister or officer under the rule of business is the decision of the President or the
Governor. Where functions entrusted to a minister are performed by an official
employed in the minister”s department there is in law no delegation because
constitutionally the act or decision of the official is that of the minister. The official is
merely the machinery for the discharge of the functions entrusted to a minister.
Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 906: 1975(3) SCC
241: 1974 Crl LJ 1500: 1974 CrLJ (SC) 575: 1974 SCC(Cr) 859: 1974 CAR 270: 1974
(2) SLR 701.
A delegation of powers, made under rule 12 (2) (a), CCS (CC&A) Rules need
not be published in the Gazette. In the rules, whenever notification in the Official
Gazette is required, the same has been mentioned. Where an order, general or special, is
to be issued, the same has been mentioned without any requirement of publication.
Orders of delegation are not subordinate legislation but are in the nature of executive
orders and need not be published. R.C. Pathak v. Union of India, (1990) 13 ATC 662
(New Delhi).
It was held that merely because the Governor subsequently has empowered the
Collector of the District to also inflict minor punishment, it does not mean that by such
delegation the Governor is denuded of his power to delegate power of suspension on the
Collector. Once the Collector was empowered by the Governor to suspend a
Government servant working in connection with the affairs of the community
development, the said power continued to be exercisable by the Collector even
delegation of power on the Collector to impose minor punishment. State of Orissa v.
Baidhar Sahu, AIR 2000 SC 1683: 2000(4) SCC 475: 2000(5) JT 499: 2000 Lab IC
1846: 2000(4) SLR 355 (SC).
5. Delegation of Power to Remove an Employee — It is implicit in the
statutory prohibition debarring removal by a lesser authority, that the appointing
authority has to personally apply its mind to the question of removal and cannot
delegate such a function. Since the authority which can remove an employee is the
appointing authority or its superior in office, the protection thus provided cannot be
272 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 12
D.T.U. v. B.B.L. Hajelay, (1972) II SCWR 597: AIR 1972 SC 2452: 1973(2) SCR 114:
1972(2) SCC 744: 1972 SLR 787: 1972 Lab IC 1619.
13. Punishment by Delegate Subordinate in Rank — Delegation of the
power to make a particular appointment does not enhance or improve the hierarchical
status of the delegate. An officer subordinate to another will not become his equal in
rank by reason of his coming to possess some of the powers of that another. Whether or
not an authority is subordinate in rank to another has to be determined with reference to
the state of affairs existing on the date of appointment. It is at that point of time that the
Constitutional Guarantee under Art. 311(1) becomes available to the person holding, for
example, a civil post under the Union Government that he shall not be removed or
dismissed by an authority subordinate to that which appointed him. The subsequent
authorization made in favour of delegate in regard to making appointments to the post
held by the Government servant cannot confer upon the delegate the power to remove
him. On the date of Government servant”s appointment if the delegate had no power to
make the appointment he cannot have the power to remove that Government servant.
Krishna Kumar v. Divisional Asst. Electrical Engineer, AIR 1979 SC 1912: 1980(1)
SCR 50: 1979(4) SCC 289: 1979 Lab IC 1314: 1979 SLJ 532: 1979 (2) SLR 291.
14. Illustrative Cases —
(1) Commissioner Appointing Authority : Revision by Deputy
Commissioner Illegal — Where an appointment has been made by the Commissioner
then despite the fact that the powers of appointment having been validly delegated to
the Deputy Commissioner, will not clothe the latter, who is admittedly subordinate in
rank to the Commissioner to levy punishment simply because the regulations empower
him to do so. Takhat Singh v. Corporation of Delhi, 1973 SLJ 262: 1973 (2) SLR 350.
(ii) The appointing authority of the petitioner was the Commissioner. Merely
because by a set of rules subsequently framed the punishing authority in respect of the
category to which the petitioner belonged was the Collector, the statutory requirement
on the basis of the Constitutional Guarantee cannot be said to be satisfied by the
authorised officer imposing the punishment. The appointing authority continued to be
Commissioner as a fact and the subsequent authorisation vesting the power in the
Collector to punish an officer of the petitioner”s category did not amount to compliance
of Art. 311(1) of the Constitution. Babaji Charan Rout v. State of Orissa, 1982 (1) SLJ
496: 1982 Lab IC 603: 1981 (3) SLR 189.
(2) General Manager Appointing Authority : Removal by Asst. General
Manager Illegal — The appointing authority of R.2 was General Manager. The Asst.
General Manager decided to remove R.2 as a result of disciplinary enquiry. The General
Manager had delegated his power to the Asst. General Manager to appoint and to
remove from service, a driver like R.2. Held, that a protection which is given to an
employee by the statute cannot be nullified by rules and regulations authorised by the
statute itself. Assistant General Manager was not a competent authority to remove R.2.
Management of D.T.U. v. B.B.L. Hajelay, 1973(2) SCR 114: 1972(2) SCC 744: 1972
SLR 787: 1972 Lab IC 1619.
(3) Chief Electrical Engineer Appointing Authority : Removal by
Divisional Assistant Engineer : Unconstitutional — Appellant was appointed by
R. 12] PENALTIES AND DISCIPLINARY AUTHORITIES 275
C.E.E. and he was removed from service by D.A.E. who is subordinate to rank to
C.E.E. Power to make appointment to the post of appellant was delegated to certain
officers including D.A.E. Removal is unconstitutional. Krishna Kumar v. Divisional
Astt. Electrical Engineer, AIR 1979 SC 1912: 1980(1) SCR 50: 1979(4) SCC 289: 1979
Lab IC 1314: 1978 SLJ 532: 1979 (2) SLR 291.
(4) Director of Industries Appointed Instructor : Removal by Principal of
Institute — Petitioner was appointed as Punjabi Stenography-instructor by the Director
of Industries and his services were terminated by the Principal of Industrial Training
Institute. Director of Industries had delegated his powers to the Principal to appoint and
terminate the services of clerks/Instructors in the grade of Rs 120-200. Petitioner had
been appointed in the grade of Rs 160-400. Order of termination set aside. Manohar Lal
v. State of Punjab, 1980 (3) SLR 705.
(5) Director of Health Service Being Appointing Authority : Removal by
Civil Surgeon (D.M.P.) Set Aside — Petitioner was appointed by Director of Health
Services. The power to impose a penalty of removal from service as disciplinary
authority had been duly conferred on the Civil Surgeon (D.M.P.), but it was conferred
after the petitioner had been appointed by the Director of Health Services. The Civil
Surgeon could not, therefore, impose the penalty of removal on the petitioner. Dina
Nath v. Dist. Medical Officer (Civil Surgeon), (1982) 2 SLJ 691.
(6) Lekhpal under U.P. Lekhpal Service Rules, 1958 — The Sub-Divisional
Officer being the appointing authority is entitled to take disciplinary action against
Lekhpal (Patwari) and impose the penalties including removal or dismissal from service
under rule 7 of U.P. Lekhpal Service Rules, 1958. State of Uttar Pradesh v. Bihari L.L.
Mishra, 1997(11) SCC 400.
(7) Superintendent of Police— In the state of Tripura, in view of the Clause
(o) of Regulation 861, as substituted by notification dated 17-2-1968, the
Superintendent of Police was competent to initiate proceedings against officers of and
below the rank of Sub-Inspectors. State of Tripura v. Priyabandhu Chakraborty,
1997(11) SCC 405.
In one case the order of dismissal is signed by “Superintendent of Police,
Patiala”. The officer who passed the order did not describe himself as “Superintendent
of Police (Headquarters)”. Whether that description is not correct is a question which
the High Court ought to have dealt with. It should also have dealt with the question
whether the order is incompetent, if it has been passed by the “Superintendent of Police
(Headquarters)”. It may also he necessary to find out whether the respondent was
posted in the Headquarters at the time of his dismissal and was he subordinate to
“Superintendent of Police (Headquarters)”. It may also be necessary to deal with the
contention of the State based upon the language employed under Column (6) of Rule
16.1 of the Punjab Police Rules. The Supreme Court therefore held that the matter
should be examined in depth by the High court. Accordingly the appeal was allowed
and the matter was remitted to the High Court for fresh disposal in accordance with the
law. State of Punjab v. Sarwan Singh, AIR 1996 SC 2981: 1996(1) JT 584: 1996 Lab IC
1045: 1996(1) SLR 748: 1996(72) FLR 663.
276 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 12
Where a superior officer has been authorised to perform some duties under an
Act or a regulation, a subordinate or deputy officer lawfully performing those duties in
the place of his superior is equally empowered to perform the duties of the office of the
superior. Rule 4 applicable on Delhi Police states that not only the Deputy
Commissioner but Additional Deputy Commissioner also has been delegated the power
of appointing Sub-Inspectors, Assistant Sub-Inspectors, Head Constables and
Constables. An Additional Deputy Commissioner is thus competent to pass an order of
dismissal and a police constable, as is the petitioner. Therefore, in a given case, even
Additional Deputy Commissioner can pass order of dismissal. He was held to be an
authority of the same rank as referred to in Section 19 of the General Clauses Act. Ram
Kishan v. Union of India, AIR 1996 SC 255: 1995 Supp (3) SCR 251: 1995(6) SCC
157: 1995(7) JT 43: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71)
FLR 929.
(8) Inspector General under Central Reserve Police Force Rules, 1955—
while for the purpose of appointment, the approval of the DIG or the IG, as the case
may be, is required to be obtained, that does not make the IG, the appointing authority.
The punishments shown as items I to II in column 2 of the table can be imposed on non-
gazetted officers and men of various ranks by the authorities named under headings at
columns 3 to 6 in terms of the conditions mentioned in column 7. So far as item No. 1
in Rule 27 is concerned. Subedar (Inspector) can be dismissed or removal from the
Force by the Deputy Inspector General of Police, who is higher in rank than the
Commandant. While considering an almost identical provisions Supreme Court held
that even when prior recommendation is necessary, it does not make the
recommending/approving authority the appointing authority. According to Rule 7(b),
the appointing authority is the Commandant and since the DIG is of higher rank, there
is no illegality in the order passed by him in passing the order of dismissal. Just because
the IG”s approval is required for the purpose of appointment or promotion, the position
of the Commandant as the appointing authority is not changed and the IG does not
become the appointing authority. Kanta Devi v. Union of India, 2003(4) SCC 753.
(9) T.N. Police Subordinate Services (Discipline and Control) Rules, 1955
— Departmental enquiry can be initiated by different authorities such as appointing
authority, disciplinary authority or even the controlling authority. Additional Supdt. of
Police v. T. Natarajan, 1998(9) JT 257: 1999(3) LLJ 1482: 2000(85) FLR 39.
that it was not an order made by the President. Presumption of correctness attached.
State of Haryana v. Dev Dutt Gupta, 1970 SLR 776; Hazara Singh v. Union of India,
1976 (1) SLR 340; Kanwal Prakash v. State of Punjab, 1976 (2) SLR 801; Yogendra
Thakur v. State of Bihar, 1981 (2) SLR 833.
Where the order communicating the decision is issued in the name of the
President and duly authenticated in the manner prescribed, the presumption is
irrebutable that the order is made by the Governor or President as the case may be, but
where the order does not comply with the provision, it is open to question the validity
that the order was not made by the President or Governor as the case may be. Gulabrao
Keshvrao Patil v. State of Gujarat, 1995 Supp (6) SCR 97: 1996(2) SCC 26: 1995(4)
CCC 362: 1996(1) SCJ 98: 1996(1) CLT 226(SC).
However there is a change in the legal position of judicial review of orders
passed under article 77 of the Constitution. It has been held that though an order is
issued in the name of the President, it does not become an order of the President passed
by him personally, but remains, basically and essentially, the order of the Minister on
whose advice the President acts and passes order. Therefore authenticity, validity and
correctness of such an order can be examined by Supreme Court in spite of the order
having been expressed in the name of the President and the immunity available to the
President under Article 361 can not be extended to the orders passed in the name of the
President under Article 77(1) or Article 77(2). Common Cause, A Registered Society v.
Union of India, AIR 1999 SC 2979: 1999(3) SCR 1279: 1999(6) SCC 667: 1999(3)
KLT 25(2)(SN): 2000(1) CCR 5(SC)
17. Promotion by Higher Authority, Dismissal by Authority Lower in Rank
to Promoting Authority — Where an authority higher than the one entitled under the
statutory rules to order an appointment, in fact orders a valid appointment, it is the
factum of that appointment that controls the scope of the guarantee conferred by Art.
311(1) of the Constitution, and if such a civil servant is dismissed or removed from
service by an authority, no doubt, competent under the rules to order the appointment
and also to order dismissal, which however is lower in rank than the authority which in
fact ordered the appointment, such an order would contravene the provisions of Art.
311(1) of the Constitution. N. Somasundram v. State of Madras, AIR 1956 Mad 419;
Bachubha Ram Singh Ji v. Shri Shiv Lal, AIR 1970 Guj 180; Man Singh v. State of
Punjab, 1973 (1) SLR 365.
18. Order by Authority Superior to Punishing Authority — Where the
service rules do not state that the penalty of dismissal shall not be inflicted on an
employee by any authority higher than that named in the rule, no question of violation
of any rule or Art. 311(1) arises if service is terminated or order of dismissal is passed
by superior authority. Jagan Nath Prasad Sharma v. State of U.P., AIR 1961 SC 1245:
1962(1) SCR 151: 1961(2) LLJ 166; State of Madras v. G. Sundaram, AIR 1965 SC
1103; K.C. Chandrasekharan v. State of Kerala, AIR 1964 Kerala 87; State of Haryana
v. Baldev Krishan Sharma, 1970 SLR 500; Union of India v. Babban Singh, 1981 (3)
SLR 244.
Seetharam Reddy J. in Pothula Subba Rao v. Post Master General, Andhra
Circle, 1980 SLJ 227: 1980 (3) SLR 183, has however held that “unless there is a direct
278 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 12
provision connecting the power to the higher authority imposing penalty alleged for, it
will not be competent for the said higher authority to seek to impose the punishment.”
19. Order of Officer Superior to Appointing Authority — Appointing
authority deciding to retain employee beyond the age of 55 years when retirement age
raised to 58 years. Officer superior to appointing authority has no jurisdiction to decide
whether the Government servant should or should not continue after the age of 55
years. Roshan Lal v. Financial Commissioner, Haryana, 1968 SLR 650; Bhim Chand v.
Dy.Commissioner, Rohtak, 1968 SLR 798.
Where according to rules, the appointing authority was the Commandant and
since the DIG was of higher rank, it was held that there was no illegality in the order
passed by him in passing the order of dismissal. Kanta Devi v. Union of India, 2003(4)
SCC 753.
20. Disciplinary Jurisdiction Over Members of State Judicial Service —
The word “control” used in Article 235 would indicate that although the Appointing
Authority of the District Judge and officers other than District Judges is the Governor
of the State, the words “control over district courts and courts subordinate thereto”,
which are words of wide connotation, vest in the High Court other facets of service of
those officers, namely, their confirmation on completion of the period of probation,
their postings, transfers and disciplinary matters including power to recommend major
punishments. Thus, the “control” vested in the High Court is complete control subject
only to the powers of the Governor in the matter of appointment, initial posting and
promotion to the posts of District Judges. For imposing major punishment, including
the punishment of dismissal, removal or reduction in rank, the High Court can, in
exercise of its powers under Article 235 of the Constitution, hold disciplinary
proceedings and recommend the punishment to be imposed on the delinquent to the
Governor who alone would be competent to impose such punishment having regard to
the provisions of Articles 233 and 234. Yoginath D. Bagde v. State of Maharashtra,
AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5)
SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39.
Disciplinary jurisdiction over members of State Judicial Service is vested in the
High Court which alone can make enquiries into their disciplinary conduct. If as a
result of any disciplinary proceedings, order of dismissal, removal or termination is to
be made, the same can be passed by the Governor on the recommendations of High
Court. Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 814:
1974(2) SCC 831: 1974 (2) SLR 701: 1974 Lab IC 1380; High Court of Punjab v. State
of Haryana, 1975 SLJ 189: 1975 (1) SLR 329; Baradakanta Mishra v. High Court of
Orissa; 1976 (2) SLR 186 (SC); Baldev Raj Guliani v. P.&H. High Court, 1976 SLJ
601: 1976 (2) SLR 758; State of Gujarat v. Ramesh Chandra, AIR 1977 SC 1619:
1977(2) SCR 710: 1977(2) SCC 12: 1977 Lab IC 849; Chief Justice, A.P. v. L.V.A.
Dikshitulu, AIR 1979 SC 193: 1979(2) SCC 34: 1978 Lab IC 1672: 1979 (1) SLR 1; P.
Kumara Menon v. State of Kerala, 1982 (1) SLR 104.
The High Courts are vested with the disciplinary control as well as
administrative control over the Members of the Judicial Service exclusively, but that
does not mean that they can also pass orders of dismissal, removal, reduction in rank or
R. 12] PENALTIES AND DISCIPLINARY AUTHORITIES 279
termination from service while exercising administrative and disciplinary control over
the Members of Judicial Service. Undoubtedly, the High Courts alone are entitled to
initiate, to hold enquiry and to take a decision in respect of dismissal, removal,
reduction in rank or termination from service, but the formal order to give effect to such
a decision has to be passed only by the State Governor on the recommendation of the
High Court. It is well settled again by a catena of decisions of Supreme Court that the
recommendation of the High Court is binding on the State Government/Governor.
Therefore while the High Court retains the power of disciplinary control over the
subordinate judiciary, including the power to initiate disciplinary proceedings, suspend
them pending enquiries and impose punishment on them but when it comes to the
question of dismissal, removal, reduction in rank or termination of the services of the
judicial officer, on any count whatsoever, the High Court becomes only the
recommending authority and cannot itself pass such an order. Registrar
(Administration), High Court of Orissa v. Sisir Kanta Satapathy, AIR 1999 SC 3265:
1999(7) SCC 725: 1999 Lab IC 3243: 1999(4) LLN 1202: 1999(83) FLR 427: 2000(96)
FJR 363: 1999(5) SLR 191: 2000(1) SLJ 226 relying upon Shyam Lal v. State of U.P.,
(1955) 1 SCR 26 and High Court of Judicature for Rajasthan v. Ramesh Chand
Paliwal, (1998) 3 SCC 72.
In another case the order of removal was passed by the High Court itself and
not in the name of Governor. Held that though the recommendation of the High Court
for removal from service is binding on the Governor, the High Court cannot by itself
pass the order of removal from service. Therefore an order terminating the service of a
judicial officer should be treated as a recommendation to Governor. T. Lakshmi
Narasimha Chari v. High Court of Andhra Pradesh, AIR 1996 SC 2067: 1996(5) SCC
90: 1996(73) FLR 1618: 1996 SCC(L&S) 1133: 1996(2) SCJ 524: 1996(2) SLJ 40:
1996(4) SLR 1: 1996(2) LLN 479.
Transport, H.P. Government v. Narain Dass, 1974 (1) SLR 386: 1974 SLJ 621. See
also M.P. Patrudu v. Controller General, Defence Accounts, New Delhi, 1994 (1) SLR
219 (CAT Hyderabad); Bhagat Singh v. Union of India, 1994 (7) SLR 743 (CAT
Calcutta).
It is not necessary that the authority competent to impose the penalty must
initiate the disciplinary proceedings and that the proceedings can be initiated by any
superior authority who can be held to be the controlling authority who may be an
officer subordinate to the appointing authority. Steel Authority of India v. R.K.
Diwakar, AIR 1998 SC 2210: 1997(11) SCC 17: 1997(7) JT 404: 1997(3) CLT
379(SC): 1997(77) FLR 351: 1997(5) SLR 234: 1998(1) LLJ 344: 1998(1) SLJ 57:
1998 Lab IC 2122; See also Ram Kishan v. Union of India, AIR 1996 SC 255: 1995(6)
SCC 157: 1995(7) JT 43: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71)
FLR 929
Although Art. 311 of the Constitution does not speak as to who shall initiate
the disciplinary proceedings but, that can be provided and prescribed by the Rules. But
if no Rules have been framed, saying as to who shall initiate the departmental
proceedings, then on the basis of Art. 311 of the Constitution it cannot be urged that it
is only the appointing authority and no officer subordinate to such authority can initiate
the departmental proceeding. Registrar of Co-operative Societies v. F.X. Fernando,
1994(2) SCC 746: 1994(1) SLR 820: 1994(27) ATC 188: 1994(1) SLJ 124: 1994(68)
FLR 769: 1994(1) LLN 847: 1994(1) LLJ 819.
2. Authority to issue charge memo— It is not necessary that charge memo has
to be issued only by an appointing authority or an authority holding a higher rank.
Government of Tamil Nadu v. S. Vel Raj, AIR 1997 SC 1900: 1997(2) SCC 708:
1997(1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3) LLJ 1.
3. Disciplinary Authority Competent to Impose Minor Penalty May
Institute Proceedings for Any Major Penalty — Sub-rule (2) of Rule 13 expresses in
general terms that a disciplinary authority competent to impose any of the minor
penalties may institute disciplinary proceedings against any Government servant for the
imposition of any of the major penalties specified in Rule 11.
4. Illustrative Cases:
(i) What Rule 13(2) of CCS(CCA) Rules, 1965 contemplates is that a
subordinate officer who is empowered to impose minor penalty is also entitled to
initiate disciplinary proceedings for major penalties. Of course, the order could be
passed by the competent authority after the enquiry was conducted and matter was
placed before them. Himachal Road Transport Corporation v. Kewal Krishan, AIR
1997 SC 2667: 1997(9) SCC 39: 1997(2) SLR 580: 1997(76) FLR 233: 1997(2) SCJ
172: 1997 Lab IC 2652: 1998(1) LLJ 1058: 1998(1) SLJ 44: 1998(3) LLN 24.
(ii) Under the schedule appended to the Rules any of the “minor penalties”
could be imposed on a Sub-Post Master by the Senior Superintendent of Post Offices
but the “major penalties” could only be imposed by the Director of Postal Services.
Since senior Superintendent of Post Offices is competent to impose any of the penalties
specified in clauses (i) to (iv) he can as disciplinary authority institute disciplinary
282 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. [13
proceedings against the Sub-Post Master for the imposition of any of the major
penalties. On receipt of findings of inquiry the major penalty can be imposed by the
Director of Postal Services and not by the Senior Superintendent of Post Offices.
Director of Postal Services v. Oudh Behari, 1980 SLJ 142; Bengali Ram v. State of
H.P., (1980) (2) SLR 776.
(iii) Departmental enquiry against a sub-Inspector of Police was initiated on
basis of certain charges by Supdt. of Police. Supdt. of Police concluded that respondent
was guilty of charges and recommended to Inspector General of Police for dismissal of
respondent. Inspector-General sent copy of report to respondent to show cause why he
should not be dismissed and after considering the explanation submitted by respondent
dismissed him. Supdt. of Police initiated and conducted enquiry under Police
Regulations. Held, that the guarantee given under Article 311 (1) does not include
within itself a further guarantee that the disciplinary proceedings resulting in dismissal
or removal of a civil servant should also be initiated and conducted by the authorities
mentioned in the Article. State of M.P. v. Shardul Singh, (1970) 2 SCJ 442: (1970) 1
SCWR 65: 1970 SLR 101; Also see M.A. Periaswamy v. D.I.G. Police, Madurai, 1974
(2) SLR 843.
In the Zoological Survey of India under Government notification dated 15th
July 1975 the Head Office can take disciplinary action even if the Director of the
Zoological Survey has not delegated the power to him. Ram Niwas v. Union of India,
(1990) 3 SLR 345 (CAT Jabalpur).
Power to punish cannot be exercised by an authority higher in rank than the
competent one. P.M.Abdul Khader v. Union of India, (1990) 14 ATC 619 (Ernakulam).
5. Words “May Institute Disciplinary Proceedings” in Sub-rule (2):
Interpretation of — The words used in sub-rule (2) “may institute disciplinary
proceedings” making it unmistakably clear that what the Rule envisages is a
departmental inquiry and not a preliminary inquiry. The distinction between a
preliminary inquiry and a regular departmental inquiry was emphasised by the Supreme
Court in Champaklal Chimanlal Shah v. Union of India, 1964(5) SCR 190: AIR 1964
SC 1854: 1964(1) LLJ 752; Director, Postal Services v. Oudh Behari Singh, 1980 SLJ 142.
6. Departmental Enquiry can be Initiated by Authority Competent to take
Disciplinary Action — An enquiry can only be ordered against a Government servant
by an authority competent to take disciplinary action against him. Where the enquiry
was ordered by an authority who was not the disciplinary authority and the disciplinary
authority passed order of removal on the basis of a report of Enquiry Officer, the order
of removal was set aside as the basis of report was of an Enquiry Officer who had not
been appointed by the disciplinary authority. Baldev Singh v. Secretary to Government,
Punjab, 1969 Cur LJ 625; 1969 SLR 689. See also Bhagat Singh v. Union of India,
1994 (7) SLR 743 (CAT Calcutta).
7. Application of mind in initiating proceedings— A competent authority
exercising powers to initiate disciplinary proceedings has to apply his mind
independently and if such statutory authority acts at the behest of some other higher
authorities, action taken by him or order passed by him shall be nonest in the eyes of
R. [13] PENALTIES AND DISCIPLINARY AUTHORITIES 283
law. D.Ramesh Sinha v. Cadre Authority for Key Personnel of Co-operative Central
Banks/Apex Bank, 2002(1) SLR 93 AP (DB).
The word “control” used in Article 235 would indicate that although the
Appointing Authority of the District Judge and officers other than District Judges is the
Governor of the State, the words “control over district courts and courts subordinate
thereto”, which are words of wide connotation, vest in the High Court other facets of
service of those officers, namely, their confirmation on completion of the period of
probation, their postings, transfers and disciplinary matters including power to
recommend major punishments. Thus, the “control” vested in the High Court is
complete control subject only to the powers of the Governor in the matter of
appointment, initial posting and promotion to the posts of District Judges. For imposing
major punishment, including the punishment of dismissal, removal or reduction in rank,
the High Court can, in exercise of its powers under Article 235 of the Constitution, hold
disciplinary proceedings and recommend the punishment to be imposed on the
delinquent to the Governor who alone would be competent to impose such punishment
having regard to the provisions of Articles 233 and 234. Yoginath D. Bagde v. State of
284 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. [13
Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR
377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39
Therefore the High Court should order, initiate and hold enquiries. The
Governor has no power to initiate such a proceeding or to transfer the same to the
Administrative Tribunal. Where the High Court requested the Government to depute the
Director of Vigilance to hold an enquiry, the Supreme Court held that the High Court
failed to discharge the duty of preserving its control and acted in total disregard of Art.
235 of Constitution. State of West Bengal v. N.N. Bagchi, AIR 1966 SC 447; State of
Assam v. Ranga Mohammad, AIR 1967 SC 903; Gangadhar Shivalingappa Nagmoti v.
State of Mysore, 1970 SLR 716: AIR 1970 Mys 302; Shamsher Singh v. State of
Punjab, AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831: 1974(2) SLR 701:
1974 Lab IC 1380. The High Court within the powers and control vested under Art. 235
can hold disciplinary proceedings and can recommend the imposition of a major
penalty. The actual power of imposition of one of the major punishments is exercisable
by the Governor who is the appointing authority. Barada Kanta Mishra v. High Court
of Orissa, AIR 1976 SC 1899: 1976 Supp SCR 561: 1976(3) SCC 327: 1976(2) SLR
186: 1976 Lab IC 1202: 1976 SLJ 539; Chief Justice, A.P. v. L.V.A. Dikshitulu, AIR
1979 SC 193: 1979(2) SCC 34: 1978 Lab IC 1672 1979 (1) SLR 1; P.Kumara Menon v.
State of Kerala, 1982 (1) SLR 104: 1982 (1) SLJ 91.
9. Institution of Proceedings: Time for Commencement of — It is not
possible to lay down any pre-determined principles applicable to all cases and in all
situations where there is delay in concluding the disciplinary proceedings. Whether on
that ground the disciplinary proceedings are to be terminated each case has to be
examined on the facts and circumstances in that case. The essence of the matter is that
the court has to take into consideration all relevant factors and to balance and weigh
them to determine if it is in the interest of clean and honest administration that the
disciplinary proceedings should be allowed to terminate after delay particularly when
delay is abnormal and there is no explanation for the delay. The delinquent employee
has a right that disciplinary proceedings against him are concluded expeditiously and he
is not made to undergo mental agony and also monetary loss when these are
unnecessarily prolonged without any fault on his part in delaying the proceedings. In
considering whether delay has vitiated the disciplinary proceedings the Court has to
consider the nature of charge, its complexity and on what account the delay has
occurred. If the delay is unexplained prejudice to the delinquent employee is writ large
on the fact of it. It could also be seen as to how much disciplinary authority is serious
in pursuing the charges against its employee. It is the basic principle of administrative
justice that an officer entrusted with a particular job has to perform his duties honestly,
efficiently and in accordance with the rules. If he deviates from this path he is to suffer
a penalty prescribed. Normally, the disciplinary proceedings should be allowed to take
its course as per relevant rules but then delay defeats justice. Delay causes prejudice to
the charged officer unless it can be shown that he is to blame for the delay or when
there is proper explanation for the delay in conducting the disciplinary proceedings.
Ultimately, the court is to balance these two diverse considerations. State of Andhra
Pradesh v. N. Radhakishan, 1998(4) SCC 154: AIR 1998 SC 1833: 1998(2) SLR 786:
1998(3) SLJ 162: 1998(2) LLN 452: 1999(94) FJR 62.
R. [13] PENALTIES AND DISCIPLINARY AUTHORITIES 285
It is trite to say that such disciplinary proceeding must be conducted soon after
the irregularities are committed or soon after discovering the irregularities. They cannot
be initiated after lapse of considerable time. It would not be fair to the delinquent
officer. Such delay also makes the task of proving the charges difficult and is thus not
also in the interest of administration. Delayed initiation of proceedings is bound to give
room for allegations of bias, mala fides and misuse of power. If the delay is too long
and is unexplained, the court may well interfere and quash the charges. But how long a
delay is too long always depends upon the facts of the given case. Moreover, if such
delay is likely to cause prejudice to the delinquent officer in defending himself, the
enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the
factors appearing for and against the said plea and take a decision on the totality of
circumstances. In other words, the court has to indulge in a process of balancing. State
of Punjab v. Chaman Lal Goyal, 1995(2) SCC 570: 1995(29) ATC 546: 1995(1) SLR
700: 1995(2) SLJ 126: 1995(2) LLJ 679: 1995(70) FLR 834 .
Merely because disciplinary proceedings for inefficiency or negligence of duty
for the period. December 1957 to June 1960 were commenced in April 1965, it does not
in any way lead to the conclusion that he was discriminated against or equality in the
matter of employment was denied to him. It is generally not possible to start
disciplinary proceedings immediately after the period ends. Such matters come to notice
after fairly long periods and then have to be processed before the disciplinary
proceedings actually commence. Brahm Dev Seth v. Union of India, 1973 SLJ 961.
In case of delay in disciplinary proceedings, it was held that though Tribunal
was right in ordering reinstatement of the employee but it had no power to quash the
charges and disciplinary proceedings. Union of India v. Raj Kishore Parija, 1995 Supp
(4) SCC 235: 1996 SCC(L&S) 196: 1996(32) ATC 133.
The interest of justice demand that the officers found indulging in corruption or
such acts be proceeded against and dealt with sternly so that it may serve as a lesson to
others. A democratic Government does not mean a lax Government. The rules of
procedure and/or principles of natural justice are not meant to enable the guilty to delay
and defeat the just retribution. The wheels of justice may appear to grind slowly but it
is the duty of all of us to ensure that they do grind steadily and grind well and truly.
The justice system cannot be allowed to become soft, supine and spineless. Delhi
Development Authority v. Skipper Construction, AIR 1996 SC 715: 1996(1) SCC 272:
1996 SCC(L&S) 294: 1996(32) ATC 230: 1995(8) SLR 221.
Allegation of permitting use of sub-standard material in construction and the
role played by officer concerned who was being charge-sheeted in respect of poor
quality of construction. Since sub-standard houses were always available it was held
that delay in such matter could not prejudice the delinquent and therefore quashing of
disciplinary proceedings on the ground of delay not called for. Delhi Development
Authority v. I.J. Mongia, 2001(3) SLT 43.
Where the charges are of very serious nature like misappropriation and illegal
allotment of land, it is not proper to quash the departmental proceedings on the ground
of delay of 16 years. Narendra Pal Singh v. State, 1999(1) SLR 565 Raj. Similarly in
another case there were allegations of embezzlement and fabrication of false record
286 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. [13
which are done in secrecy therefore the long time was likely to be taken, and the order
quashing the charges was set aside. Secretary to Government, Prohibition & Excise
Department v. L. Srinivasan, 1996(3) SCC 157: 1996(2) SLR 291: 1996(33) ATC 745:
1996(73) FLR 1247: 1996(1) LLN 448: 1996(2) LLJ 245.
However a view is that the Government can conduct inquiry into misconduct,
negligence or financial irregularity even after retirement of an employee. D.C.
Mazumdar v. Union of India, 1999(5) SLR 338 Delhi (DB): 1999(77) DLT 442:
1999(1) AD(Delhi) 649: 1999(1) LLJ 871. The enquiry proceedings can be legally
continued against the officer even if he has been prematurely retired from service. P.K.
Jain v. State of Haryana, 1999(1) SLR 337 P&H (DB); relying upon Ishar Singh v.
State of Punjab, 1994(3) Recent Services Judgments (RSJ) 543: 1993(4) SLR 655
(P&H) (FB).
When no disciplinary action is initiated under All India Service Rules while the
employee was in service disciplinary action cannot be taken after the retirement of the
employee and similar proceedings initiated under State Rules prior to promotion of the
candidate to All India Service cannot be continued after such promotion. State of
Rajasthan v. P.D. Paliwal, 2002(2) SLR 164 Raj (DB).
In the service rules no specific provision was made for deducting any amount
from the provident fund consequent to any misconduct determined in the departmental
enquiry nor was any provision made for continuance of departmental enquiry after
superannuation. Held that in view of the absence of such provisions in the abovesaid
regulations, it must be held that the Corporation had no legal authority to make any
reduction in the retiral benefits of the appellant. There is also no provision for
conducting a disciplinary enquiry after retirement of the appellant and nor any
provision stating that in case misconduct is established, a deduction could be made
from retiral benefits. Bhagirathi Jena v. Board of Directors, O.S.F.C., 1999(3) SCC
666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999
Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143: 1999(95) FJR 21: 1999(3) SLJ 294.
R. [13] PENALTIES AND DISCIPLINARY AUTHORITIES 287
PART VI
PROCEDURE FOR IMPOSING PENALTIES
R. 14
1 Substituted by Notification No. 11012.8/94-Estt. (A), dt. 2-01-1996 for the words
“receipt by him”.
2 Substituted by Notification No. 11012/6/92-Estt. (A) dt. 04-6-1992 for the word
“two”.
R. 14] PROCEDURE FOR IMPOSING PENALTIES 291
(i) inspect within five days of the order or within such further
time not exceeding five days as the inquiring authority
may allow, the documents specified in the list referred to
in sub-rule (3);
(iii) give a notice within ten days of the order or within such
further time not exceeding ten days as the inquiring
authority may allow, for the discovery or production of
any documents which are in the possession of Government
but not mentioned in the list referred to in sub-rule (3).
COMMENTARY
SYNOPSIS
General
1. Departmental enquiry: what it is.. .................................................................................. 301
2. Department enquiry, a quasi judicial proceeding ........................................................... 302
3. Disciplinary Enquiries, Form and procedure of ............................................................. 303
4. Disciplinary Enquiries: Personal hearing if necessary ................................................... 303
5. Disciplinary proceedings against several employees...................................................... 303
6. Disciplinary proceedings whether end on attaining the age of superannuation .............. 304
7. Disciplinary proceedings cannot be initiated or continued after retirement ................... 304
8. Fresh enquiry after removal from service....................................................................... 305
9. Disciplinary action against employee on verge of retirement ......................................... 305
296 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
10. Disciplinary action against probationer: Who gave notice terminating his service ........ 306
11. Disciplinary enquiry against civilians in Defence Service ............................................. 306
12. Disciplinary enquiry against judicial officer .................................................................. 307
13. Preliminary enquiry cannot take the place of regular enquiry —
(i) Article 311 of the Constitution does not apply to preliminary enquiry ............. 307
(ii) Preliminary enquiry does not debar regular departmental proceedings ............ 307
14. Criminal and disciplinary proceeding simultaneously ................................................... 307
15. Acquittal or conviction whether bar to enquiry .............................................................. 308
16. Effect of order of acquittal on departmental proceeding ................................................ 309
17. De nova enquiry into charges of which official has been acquitted ............................... 310
18. De nova enquiry where penalty quashed on ground that Enquiry Officer was biased
against delinquent official ...................................................................................................... 310
19. Disciplinary authority whether can order successive enquiries ...................................... 310
20. Re-enquiry when order set aside for not affording reasonable opportunity or on
technical ground ..................................................................................................................... 310
21. Second departmental enquiry on same facts or charges —
(i) When can be made............................................................................................. 311
(ii) When cannot be made ...................................................................................... 311
22. Whether a Departmental Enquiry can be Ordered Subsequent to the Recording of an
Adverse Annual Confidential Report on the Identical or Substantially on the Same
Materials ................................................................................................................................ 311
23. Executive instruction, breach of ................................................................................. 312
24 . Evidence Act, application of ...................................................................................... 312
25 . Technical rules of evidence do not apply to these proceedings ................................... 312
26. Evidence of co-delinquent can be considered.............................................................. 312
27 Evidence, hearsay: Admissibility of ............................................................................ 313
28. Evidence, whether hearsay .......................................................................................... 313
29. Evidence: (i) Tape-recorded conversation .. ................................................................ 314
(ii) Handwriting expert ................................................................................................ 314
30. Misconduct, to be deemed condoned on promotion .................................................... 315
31. Article 311 of the Constitution, provides protection to persons employed in civil
capacities under the Union or States ...................................................................................... 315
32 Enquiry be held in accordance with the principles of natural justice ......................... 316
33. Natural justice: Principle of ........................................................................................ 316
34. Natural justice: requirement of ................................................................................... 319
35. Natural justice, rules of .............................................................................................. 319
36. Natural justice, non-observance of principles or rules of ........................................... 320
37. Compliance with each of the requirements laid down in the rule: necessary —
(i) Court has to see the procedural irregularity ...................................................... 321
R. 14] PROCEDURE FOR IMPOSING PENALTIES 297
97. Admission of delinquent officer should be taken as a whole and not only the part
thereof .................................................................................................................................... 347
Sub-rules (11), (12) and (13)
98. Sub-rule (11) is a mandatory provisions.......................................................................... 348
99. Whether Govt. servant can take down notes at the time of inspection under sub-rule
(11)(i) ..................................................................................................................................... 348
100. Not taking part in enquiry and not appearing in enquiry proceedings ........................... 348
101. Access to file relied upon by enquiry officer be allowed .............................................. 348
102. Claim of privilege, grounds for ..................................................................................... 349
103. Privilege cannot be claimed for —
(i) Privilege can be claimed for .............................................................................. 350
(ii) Claim of privilege, affidavit for ........................................................................ 350
104 Documents, withholding of .......................................................................................... 350
105. Documents, supply of copies to public servant ............................................................. 350
106, Whether copies of statements recorded during preliminary enquiry should be supplied
to delinquent Government servant ......................................................................................... 352
107. Exhibiting of document during enquiry......................................................................... 353
Sub-rules (14) and (15)
108. Date and place of hearing be informed to delinquent .................................................... 353
109. Language of inquiry ...................................................................................................... 354
110. Enquiry officer not to record evidence on allegation extraneous to the charge ............. 354
111. Enquiry officer, role of .................................................................................................. 354
112. Consideration of confession .......................................................................................... 355
113. Witness, summoning of, for examination or discovery and production of documents .. 355
114. Witnesses, statements of —
(i) Charge-wise disapproved................................................................................... 356
(ii) Be recorded in presence of delinquent officer .................................................. 356
115. Witnesses, statement of, in criminal Trial ..................................................................... 356
116. Witnesses, statement of, in preliminary enquiry, use of ................................................ 356
117. Witnesses, before police and statement u/s 161 Cr. P.C. ............................................... 357
118. Witnesses, mentioned in list, right to ask for copies of their statements ....................... 357
119. Witnesses and documents not mentioned in the list, production of ............................... 357
120. Witnesses in support of charge, failure to examine material witness ............................ 357
121. Witnesses, adjournment for cross-examination ............................................................. 358
122. Witnesses, cross-examination of - date be fixed ........................................................... 358
123. Witnesses, opportunity be given to delinquent to cross-examine .................................. 358
124. Witnesses, enquiry officer as witness ............................................................................ 358
125. Witnesses, disciplinary authority as witness ................................................................. 358
300 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
GENERAL
1. Department Enquiry: What it is? — A department enquiry under the CCS
(CC&A) Rules is not a criminal trial for the imposition of a punishment. Nor it is a
proceeding in a court of law. It is not even a lis between two parties which is being
decided by a third person. It is only a proceedings instituted by the Government in its
capacity as the employer against his employee in his capacity as the employee for the
satisfaction of the mind of the Government as to whether the employee has committed
misconduct. Such misconduct is merely relevant to the contract of service between the
parties. A.R.R. Deshpande v. Union of India, 1971(2) SLR 776 (Delhi), Bhagat Singh v.
Union of India, 1994(7) SLR 743 (CAT Calcutta); D.P. Bijawat v. Union of India,
1994(7) SLR 102 (CAT New Delhi); S.B. Ramesh v. Ministry of Finance, Govt of India,
1994(6) SLR 183 (CAT Hyderabad); T.V.S. Sarma v. Union of India, 1994(7) SLR 137
(CAT Bombay).
The departmental enquiry before the Tribunal is not the same as prosecution in
a criminal case. State of A.P. v. Chitra Venkata Rao, AIR 1975 SC 2151: 1975 SLJ 772:
1976(1) SLR 653: 1976(2) SCJ 227. See also Krishan Lal v. Union of India, 1993(6)
SLR 610 (CAT New Delhi). Standard of proof in a criminal case and departmental
enquiry is different. Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh, 1994 Supp (3)
SCC 628: 1994(5) SLR 534: 1994(28) ATC 594: 1994(69) FLR 1078: 1995(2) LLJ 633:
1996(2) LLN 451. The inquiry proceedings should not be examined by the court as if it
was hearing an appeal in criminal case. Union of India v. A. Nagamalleshwar Rao, AIR
1998 SC 111: 1998(1) SCC 700: 1998(78) FLR 68: 1998(1) SLR 18: 1998 Lab IC 389:
1998(1) LLN 361. See also Union of India v. B.K. Srivastava, 1998(6) SCC 340: AIR
1998 SC 300: 1997(77) FLR 786: 1998(1) LLJ 431: 1998(1) LLN 340.
2. Department Enquiry, a Quasi-judicial proceeding — The obligation to act
fairly on the part of the administrative authorities was evolved to ensure the rule of law
and to prevent failure of justice. This doctrine is complementary to the principles of
natural justice which the quasi-judicial authorities are bound to observe. It is true that
the distinction between a quasi-judicial and the administrative action has become thin,
as pointed out by Supreme Court as far back as 1970 in A.K. Kraipak v. Union of India,
1969 (2) SCC 262.
Enquiries which were considered administrative at one time are now being
considered as quasi judicial in character. Even an administrative order which involves
302 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
civil consequences must be made consistently with the rules of natural justice. State of
Orissa, v. Binapani Dei (Dr. Miss), 1969(1) SCWR 1122: AIR 1970 SC 150: 1970(1)
SCR 457: 19698(2) SCC 262: 1969 SLR 445; Nand Kishore Prasad v. State of Bihar,
AIR 1978 SC 1277:1978(3) SCR 708: 1978(3) SCC 366: 1978 Lab IC 1106: 1978(2)
SLR 46: 1978 SLJ 591. See also Union of India v. K.K. Dhawan, 1993(1) SCR 296:
1993(2) SCC 56: 1993(1) JT 236 (SC): AIR 1993 SC 473: 1993 Lab IC 1028: 1993(2)
ATC 1: 1993(1) Cur LR 415: 1993 SCC (L&S) 325: 1993(1) SLR 700: 1993 AIR SCW
1361: 1993(1) SPJ 396; S. Sundarsan v. Union of India, 1996(8) SLR 347 (SC).
At one time, the traditional view in England was that the executive was not
answerable where its action was attributable to the exercise of prerogative power.
Professor De Smith in his classical work “Judicial Review of Administrative Action”
4th Edition at pages 285-287 states the legal position in his own terse language that the
relevant principles formulated by the Courts may be broadly summarized as follows.
The authority in which a discretion is vested can be compelled to exercise that
discretion, but not to exercise it in any particular manner. In general, a discretion must
be exercised only by the authority to which it is committed. That authority must
genuinely address itself to the matter before it; it must not act under the dictates of
another body or disable itself from exercising a discretion in each individual case. In
the purported exercise of its discretion, it must not do what it has been forbidden to do,
nor must it do what it has not been authorized to do. It must act in good faith, must have
regard to all relevant considerations and must not be influenced by irrelevant
consideration, must not seek to promote purposes alien to the letter or to the spirit of
the legislation that gives it power to act, and must not act arbitrarily or capriciously.
These several principles can conveniently be grouped in two main categories: (i) failure
to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes
are not, however, mutually exclusive. Thus, discretion may be improperly fettered
because irrelevant considerations have been taken into account and where an authority
hands over its discretion to another body it acts ultra vires. Indian Railway
Construction Co. Ltd. v. Ajay Kumar, 2003(4) SCC 579: 2003(2) JT 295: 2003(2) SLR
639: 2003(2) LLJ 150.
these circumstances, the need to split up the cases is obviously redundant, time
consuming and dilatory.
In one case, in the service rules no specific provision was made for deducting
any amount from the provident fund consequent to any misconduct determined in the
departmental enquiry nor was any provision made for continuance of departmental
enquiry after superannuation. Held that in view of the absence of such provisions in the
abovesaid regulations, it must be held that the Corporation had no legal authority to
make any reduction in the retiral benefits of the appellant. There is also no provision for
conducting a disciplinary enquiry after retirement of the appellant and nor any
provision stating that in case misconduct is established, a deduction could be made
from retiral benefits. Bhagirathi Jena v. Board of Directors, O.S.F.C., 1999(3) SCC
306 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999
Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143: 1999(95) FJR 21: 1999(3) SLJ 294.
When no disciplinary action is initiated under All India Service Rules while the
employee was in service disciplinary action cannot be taken after the retirement of the
employee and similar proceedings initiated under State Rules prior to promotion of the
candidate to All India Service cannot be continued after such promotion. State of
Rajasthan v. P.D. Paliwal, 2002(2) SLR 164 Raj (DB).
In another case it was held that the Government can conduct inquiry into
misconduct, negligence or financial irregularity even after retirement of an employee.
D.C. Mazumdar v. Union of India, 1999(5) SLR 338 Delhi (DB): 1999(77) DLT 442:
1999(1) AD(Delhi) 649: 1999(1) LLJ 871.
The enquiry proceedings can be legally continued against the officer even if he
has been prematurely retired from service. P.K. Jain v. State of Haryana, 1999(1) SLR
337 P&H (DB); relying upon Ishar Singh v. State of Punjab, 1994(3) Recent Services
Judgments (RSJ) 543: 1993(4) SLR 655 (P&H) (FB).
10. Disciplinary Action Against Probationer: Who Gave Notice
Terminating his Services — The appellant who was a probationer gave a notice to the
Government terminating his service. Ever since he served the notice as he was not in
service of the Government. Therefore, it was not open to the Government to take any
disciplinary proceedings against him. V.P. Gindroniya v. State of M.P., 1970(I) SCWR
294: AIR 1970 SC 1494: 1970(3) SCR 448: 1970(1) SCC 362: 1970 Lab IC 1332: 1970
SLR 329: 1970(2) SCJ 573.
11. Disciplinary Enquiry Against Civilians in Defence Service — The CCS,
(CCA) Rules, 1965, are applicable when disciplinary proceedings are taken. They do
not make disciplinary proceedings under the rules incumbent or obligatory whenever
the service of person covered by these rules are terminated. The obligation to follow the
procedure for punishment laid down in the rules flows from the provisions of Article
311. And as the opening words of Article 310 show, the doctrine of office held at the
pleasure of the President does not apply to cases covered by Article 11. A civilian in
defence service is not entitled to the protection of Article 311, the only effect of the
1965 Rules upon his case is that they could be applied if disciplinary proceedings are
taken against him as the holder of a post “connected with defence”. In other cases of
such servants, where no such disciplinary proceedings are instituted, the 1965 Rules,
governing procedure for punishments to be imposed, will not apply at all. The legal
obligation to apply them to every case of punishment, following from Article 311, is
confined to holder of posts covered by Article 311. Union of India v. K.S.
Subramanian, AIR 1976 SC 2433: 1977(1) SCR 87: 1976(3) SCC 677: 1976 Lab IC
1551: 1976 SLJ 539: 1976(2) SLR 519; O. Ramchandra Reddy v. Director, Defence
Research & Development Laboratory, 1980(1) SLR 490; V.Y. Thomas v. Commandant,
A.D.C., 1982(2) SLR 39. See also Krishan Lal v. Union of India, 1993(6) SLR 610
(CAT New Delhi); Ranjit Kumar Majumdar v. Union of India, 1995(5) Supp SCR 717:
1996(1) SCC 51: 1995(1) SCC 51: 1995(8) JT 359: 1996 SCC (L&S) 255: 1996(22)
ATC 200: 1996(1) SLR 35 (SC).
R. 14] PROCEDURE FOR IMPOSING PENALTIES 307
12. Disciplinary Enquiry Against Judicial Officer — Where the High Court
requested the Government to depute Director of Vigilance to hold enquiry, it failed to
discharge the duty of preserving control and acted in total disregard of Article 235,
Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 814: 1975(3) SCC
241: 1974 Lab IC 1380: 1974(2) SLR 701. High Court alone can hold enquiry against a
member of the Judicial Service and the Government cannot do so. B.R. Guliani v. P&H
High Court, 1975(1) SLR 703 (FB); Baldeo Raj Guliani v. Punjab & Haryana High
Court, AIR 1976 SC 1633: 1976 SLJ 601: 1976(2) SLR 758; Chief Justice, A.P. v.
L.V.A. Dikshitulu, AIR 1979 SC 193: 1979(2) SCC 34: 1979(1) SLR 1: 1978 Lab IC
1672; P. Kumara Menon v. State of Kerala, 1982(1) SLR 104.
(i) Article 311 of the Constitution does not Apply to Preliminary Enquiry
— Preliminary enquiry is for the purpose of deciding whether or not departmental
enquiry is necessary. Article 311 does not apply to such proceedings. Chamak Lal
Chiman Lal Shah v. Union of India, AIR 1964 SC 1854: 1964(5) SCR 190; Ram Subhag
v. Union of India, 1988(4) SLR 139 Pat (DB).
Criminal proceedings under the Indian Penal Code, Section 468 and 481 and
departmental proceedings for the same misconduct can proceed simultaneously. There
is no bar as such.
(I) Bhagaban Chowbey v. Union of India, 1987(4) ATC 153 (CAT
All).
(ii) M.M. Rubber Co. v. S. Natarajan, 1986(1) SLJ 256 Mad (Reviews
case-law)
(iii) Sufal Kumar Naskar v. Union of India, 1991(1) SLR 658, 662-664
(CAT Cal) (reviews case-law)
(iv) Nepal Chandra v. Union of India, 1988(1) SLJ 165.
Departmental proceedings and criminal proceedings can go on together, unless
there is a stay order in operation. Petitioner was charged with embezzlements of store
brass cups. Departmental proceedings, as well as criminal proceedings were initiated
against him. He was acquitted in criminal proceedings, but dismissed departmentally.
Dismissal was held proper. Laxmi Prasad v. Union of India, 1989(1) SLR (CAT
Jabalpur).
S.K. Mal Lodha, J., in Jagdish Prasad Khatri v. State of Rajasthan, 1980(1)
SLR 225, after going through the various decisions summarised the law thus: “the
disciplinary proceedings against a Government servant need not always be stayed in
respect of a charge, pending the trial of a criminal case regarding the same charge. In
disciplinary proceedings, the question involved is whether employee is guilty of the
charge, on which it is proposed to take disciplinary action. The power of taking such
action is vested only in Disciplinary Authority and civil and criminal Courts have no
such power. Departmental inquiry into the charges against a Government servant can
proceed despite the fact that in inquiry into the same charge is pending before a civil or
criminal Court. In case of grave nature or involving complicated question of fact or law,
it may be advisable to wait for the verdict of a criminal court.”
15. Acquittal or Conviction Whether Bar to Enquiry — It is settled law that
where an employee has been convicted or acquitted by a criminal court of any offence
under the Penal Code, there is no legal or Constitutional bar on the same set of facts to
the departmental inquiry being conducted against him after affording reasonable
opportunity. See K.Srinivasa Rao v. Director of Agriculture, A.P., 1971(2) SLR 24;
Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269; Sham Singh v.
D.I.G. Police, AIR 1965 Raj 140; Krishna Murthy v. Chief Engineer, S.Rly., AIR 1967
Mad 315; Nand Kishore v. State of Bihar, AIR 1967 Pat 133; Khizar Mir v. Director,
Fisheries, 1970 SLR 632; Gurdev Singh v. State of Punjab, 1970 SLR 885; M. Nissar
Ahmed v. State of Mysore, 1971(2) SLR 311.
In R.P. Kapur v. Union of India, AIR 1964 SC 787: 1964(5) SCR 431: 1966(2)
LLJ 164, the Supreme Court had observed: “If the trial of the criminal charges result in
conviction, disciplinary proceedings are bound to follow against the public servant so
convicted, even in case of acquittal proceedings may follow where the acquittal is other
than honourable.”
R. 14] PROCEDURE FOR IMPOSING PENALTIES 309
In Bhagwat Charan v. State of U.P., 1973 SLJ 448: 1973(2) SLR 238 and
Rajendra Kumar Paul v. Union of India, 1976(2) SLR 295, it was held that if a person
has been honourably acquitted by the criminal court, then departmental proceedings on
the basis of the same charges are not competent. Full Bench of Allahabad High Court in
Kunwar Bahadur v. Union of India, AIR 1969 All 414 (FB), held that, where conviction
is set aside on appeal departmental enquiry can be held. The proposition that acquittal
in a criminal case does not operate as an absolute bar to a departmental proceeding is
now firmly established by authoritative pronouncements and needs no reiteration. Sri
Gurunath Pradhan v. State of Orissa, 1979(2) SLR 118; see also Narayan Rao v. State
of Karnataka, 1980(3) SLR 182; Mandal Dutt v. Rajasthan State Road Transport
Corporation, 1980(3) SLR 371.
A Division Bench of Kerala High Court in D.I.G. of Police v. Sankaran,
1982(2) SLJ 537 said, “We once again desire to point out that there would have been no
bar to holding disciplinary proceedings on the same set of facts merely because a
Criminal Court had in a prosecution found in favour of the officer charged with the
offence. But the position is different when the rule making authority has chosen to
incorporate rule creating an express bar in continuing such proceedings”.
16. Effect of Order of Acquittal on Departmental Proceeding — The
disciplinary authority in departmental proceedings does not violate any rule of law or
any other principle of law, when it chooses to ignore the findings of the criminal court
and decides to act on the evidence led before him, and ultimately comes to the
conclusion that such officer is not fit to be retained in service in spite of his acquittal by
the criminal court. He also does not violate any principle of natural justice merely by
ignoring such findings after giving full opportunity to the delinquent to have his say.
Bhaurao v. State of Maharashtra, 1973 SLJ 92 Bombay: 1972 SLR 699; Narayana Rao
v. State of Karnataka, 1980(3) SLR 182: 1981(1) SLJ 18; Also, see Adi Pherozshah v.
H.M. Seervai, AIR 1971 SC 385: 1971(1) SCR 863: 1970(2) SCC 484, wherein it was
held that findings of any criminal court ordinarily do not operate as res judicata in any
civil proceedings.
Petitioner was acquitted in criminal proceedings. Disciplinary proceedings
were continued. Nature and scope of the criminal proceedings are different from
departmental proceedings. Order of acquittal in criminal proceedings cannot ipso facto
conclude departmental proceedings. Nelson Motis v. Union of India, 1992(1) Supp SCR
325: AIR 1992 SC 1981: 1992(4) SCC 711: 1992(5) JT 511: 1992(3) SLJ 65: 1992(5)
SLR 394: 1992(2) ATR 612:1992 Lab IC 2037:1993(23) ATC 382: 1992 AIR SCW 2304.
If the delinquent officer is acquitted in the criminal case whether or not the
departmental inquiry pending against him would have to continue. This is a matter
which is to be decided by the department after considering the nature of the findings
given by the criminal court. Normally where the accused is acquitted honourably and
completely exonerated of the charges it would not be expedient to continue a
departmental inquiry on the same charges or grounds of evidence, but the fact remains,
however, that merely because the accused is acquitted, the power of the authority
concerned to continue the departmental inquiry is not taken away nor its discretion in
any way fettered. Corporation of the City of Nagpur v. Ram Chamdra, 1981(3) SCR 22:
310 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
AIR 1984 SC 626: 1981(2) SCC 714:1981(2) SLR 274 (SC): 1984 Lab IC 194. See also
Mohendra Kumar Pradhan v. State of Orissa, 1988(4) SLR 416 Ori, Devi Ram Saini v.
State of Haryana, 1991(2) SLR P&H.
17. De Nova Enquiry into Charges of Which Official had been Acquitted —
The fundamental principle viz. that no one shall be punished or put in peril twice for the
same matter is applicable even to orders passed in departmental enquiries. S.V.G.
Iyengar v. State of Mysore, AIR 1961 Mys 37; Prakash Nath Saidha v. Financial
Commissioner, 1972 SLR 601 Punjab; Hridaya Narayan Prasad v. State of Bihar,
1975(1) SLR 232; A.Gopala Rao v. Post Master General, Hyderabad, Andhra Circle,
1979(2) SLR 370. De nova enquiry is permissible when the impugned order is set aside
for not affording reasonable opportunity, or conducting the disciplinary proceedings in
a manner contrary to law and opposed to principles of natural justice or on any
technical ground. See Devendra Pratap v. State of U.P., AIR 1962 SC 1334: 1962
Supp(1) SCR 315: 1962(2) SCJ 282; Abdul Wajeed v. State of Karnataka, 1981(1) SLR
454. See also Amal Kumar Roy v. Union of India, 1988(1) SLR 330 (CAT Cal); M.
Kolandri Gounder v. Divisional Engineer, T.N.E.B. Thurainur, 1997(1) SLR 467 Mad.
20. Re-inquiry When Order Set Aside for not Affording Reasonable
Opportunity or on Technical Ground — It is settled law that where the Civil Court or
the High Court under Article 226 set aside the order of dismissal or removal on the
R. 14] PROCEDURE FOR IMPOSING PENALTIES 311
ground that the Government servant was not afforded reasonable opportunity under
Article 311(2), he can once again be proceeded against by the departmental authorities
for the charges levelled against him on the same set of facts after affording reasonable
opportunity. Where the Civil Court or High Court sets aside the order of departmental
authority on technical grounds, the re-enquiry into the same charges on the same set of
facts after following the contract procedure and affording opportunity to the employee
can be made. K. Srinivasa Rao v. Director of Agriculture, A.P., 1971(2) SLR 24 (AP):
1971 Lab IC 778; Anand Narain Shukla v. State of M.P., AIR 1979 SC 1923: 1980(1)
SCR 196: 1980(1) SCC 252: 1979 Lab IC 1214: 1979(2) SLR 288: 1979 SLJ 528;
Union of India v. M.B. Patnaik, 1981(2) SCR 817: 1981(2) SCC 159: 1981(1) SLR 377:
1981 Lab IC 858: AIR 1981 SC 858. In Union of India v. M.B. Patnaik, 1981(1) SLJ
400, the Supreme Court relied on its earlier decision in Anand Narain Shukla”s case but
held that it would be inequitable to hold fresh inquiry after a long lapse of time.
An enquiry was held as a result of which warning had been issued to the
petitioner. On the same charges the enquiry proceedings were again started. It was
stated on behalf of the state that the earlier was not a formal enquiry but only a fact
finding enquiry and the warning issued was not proper. Obviously, the petitioner cannot
be punished for the second time for the same lapse or on the same charges. P.Kumari v.
State of Punjab, 1982(1) SLR 241.
Disciplinary authority dropped the charges which had been initially framed.
The dropping was on technical ground. Later, the second proceeding was initiated. It
was held that it was not prohibited as per Rule 14, CCS (CC&A) Rules. P. Mallaiah v.
S.D.O., Telecommunication, 1982(2) SLR 282 (CAT Hyderabad).
SLR 338: 1981(1) SLJ 586; Bhajan Singh v. Bahal Singh, 1976 SLR 601 and Kartar
Singh v. State of Haryana, 1973 Cur LJ 36 overruled.
23. Executive Instructions, Breach of — Executive instructions regarding
departmental enquiries are not mandatory but obligatory. Breach of these is not
justifiable. Bhupendra Singh v. State of Haryana, AIR 1968 Pun 406. For other view,
see Shayam Kumar v. Union of India, 1982(1) SLR 845: 1981(2) SLJ 337.
24. Evidence Act, Application of — (I) Evidence Act has no application to
enquires conducted by Tribunals. Union of India v. T.R. Verma, AIR 1957 SC 882:
1958 SCR 499: 1958 SCJ 142; State of Mysore v. Shivabassappa, AIR 1963 SC 375:
1963(2) SCR 943:1964(1) LLJ 24: 1963(2) SCJ 104. See also A.V. Krishnamurthy v.
Government of T.N., 1985(1) SLR 773 Mad (DB); B.B. Godhari v. State of Gujarat,
1986(2) SLR 19 Guj.
(ii) It may be that in disciplinary proceedings, the technicalities of criminal law
cannot be invoked, and the strict mode of proof prescribed by the Evidence Act may not
be applied with equal vigour, but the charge framed against the public servant must be
held to be proved before any punishment can be imposed on him. State of Madras v.
A.R. Srinivasan, 1966(II) SCWR 524: AIR 1966 SC 1827: 1967(15) FLR 104: 1967(1)
SCJ 855.
25. Technical Rules of Evidence do not Apply to These Proceedings — The
rules of natural justice do not demand strict compliance with the procedure obtaining in
regular Courts of Law and the technical rules of evidence do not apply to such
proceedings. Basant Kumar Jain v. Union of India, 1969 DLT 599 Delhi; U.R.Bhatt v.
Union of India, AIR 1962 SC 1344: 1962 Supp(1) SCR 315: 1962(2) SCJ 282: 1962(1)
LLJ 266; Ramesh Chandra v. Union of India, AIR 1967 MP 81; K.L.Shinde v. State of
Mysore, 1976 SLJ 468: 1976(2) SLR 102 & 260: AIR 1976 SC 1080: 1976(3) SCR 913:
1976(3) SCC 76; State of Haryana v. Rattan Singh, AIR 1977 SC 1512: 1977(2) SCC
491: 1977 Lab IC 845: 1977(1) SLR 750: 1977 SLJ 408; T.K. Joseph v. Appellate
Tribunal, 1981(2) SLR 787; K.K. Bali v. Comptroller and Auditor General, 1982(2)
SLR 112; State of Tamil Nadu v. M.A. Waheed Khan, 1998(8) SCC 723: 1999(3) LLJ
710; Lalit Popli v. Canara Bank, 2003(3) SCC 583: 2003(2) LLJ 324. The only
requirement of law is that the allegation against the delinquent officer must be
established by such evidence acting upon which a reasonable person acting reasonably
and with objectivity may arrive at a finding upholding the gravamen of the charge
against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of
guilt even in departmental enquiry proceedings. Bank of India v. Degala
Suryanarayana, AIR 1999 SC 2407: 1999(3) SCR 824: 1999(5) SCC 762: 1999(4) SLR
292: 1999(2) LLJ 682: 1999 Lab IC 2819: 1999(3) LLN 532: 1999(82) FLR 1004:
1999(95) FJR 477: 1999(3) SCJ 168.
26. Evidence of co-delinquent can be considered— In a departmental
enquiry, the question, whether or not any delinquent officer is co-accused with other
does not arise. That would arise in a prosecution laid for officer under the IPC or
Prevention of Corruption Act. The evidence recorded in the departmental enquiry
stricto senso is not evidence as per the provisions of the Evidence Act. Therefore, the
statement of Palairam also formed part of the record which could be taken into account
R. 14] PROCEDURE FOR IMPOSING PENALTIES 313
in adjudging the misconduct against the appellant. Vijay Kumar Nigam v. State of
Madhya Pradesh, AIR 1997 SC 1358: 1996 Supp (8) SCR 544: 1996(11) SCC 599:
1997(1) SLR 17: 1997(1) CLT 263(SC): 1997(2) LLN 585: 1997(77) FLR 7: 1997(91)
FJR 84.
28. Evidence, Whether Hearsay — Section 60 of the Indian Evidence Act lays
down that oral evidence must be direct. If it refers to a fact which could be heard, it
must be the evidence of a witness who says he heard it. The evidence before the court
can be divided into original and unoriginal. The original is that which a witness reports
himself to have seen or heard through the medium of his own senses. Unoriginal, also
called derivative, transmitted, second-hand or hearsay, is that which a witness is merely
reporting not what he himself saw or heard, not what has come under the immediate
observation of his own bodily senses, but what he had learnt respecting the fact through
the medium of a third person. Hearsay, therefore, properly speaking is secondary
evidence of any oral statement. Balram Prasad Agrawal v. State of Bihar, AIR 1997 SC
1830: 1996 Supp (9) SCR 752: 1997(9) SCC 338: 1997(1) Crimes 10 (SC): 1997 CrLJ
1640: 1997(2) CCR 86(SC): 1997(1) DMC 161: 1997 SCC(Cr) 612.
Allegation that the Bus Conductor recovered fare from the passenger but did
not issue tickets. None of the passengers examined in the course of inquiry nor
checking staff recorded any statement from any of the passenger. Findings of guilt
recorded by the Inquiry Officer on the basis of such hearsay evidence is a case of “no
evidence” and termination on such report is illegal. State of Haryana v. Bikar Singh,
2002(2) SLR 341 P&H.
However in another case it has been held that comparison of hand writings by
the Inquiry officer does not amount to proof even though the degree of proof required in
Disciplinary Proceedings is not of that standard required in criminal case but the
suspicion cannot be substituted for proof even in departmental enquiry. Ministry of
Finance v. S.B. Ramesh, 1998(3) SCC 227: AIR 1998 SC 853: 1998(78) FLR 700:
1998(1) SLR 618: 1998(2) SLJ 67: 1998 Lab IC 623: 1998(1) LLN 968.
R. 14] PROCEDURE FOR IMPOSING PENALTIES 315
(c) where the President or the Governor, as the case may be, is
satisfied that in the interest of the security of the State it is not
expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is
reasonably practicable to hold such inquiry as is referred to in clause (2), the decision
thereon of the authority empowered to dismiss or remove such person or to reduce him
in rank shall be final].
Article 311(2) of the Constitution which guarantees a reasonable opportunity to
a public servant ensures:
(a) an opportunity to deny his guilt and establish his innocence which
he can only do if he is told what the charges levelled against him
are and the allegations on which such charges are based, and
(b) an opportunity to defend himself by cross-examination the
witnesses in support of his defence.
If reasonable opportunity is not given to a delinquent officer before or at the
enquiry and he is prejudiced in raising his defence properly, the proceedings are liable
to be quashed.
Can it be said the words “reasonable opportunity of being heard in respect of
those charges” occurring in and retained in clause (2) of Article 311 would import an
opportunity being given after the enquiry is over the finding is recorded and before the
imposition of penalty ? Held, the opportunity contemplated in clause (2) can only be
opportunity during enquiry and before decision is arrived at in regard to the charges.
The opportunity contemplated in clause (2), as it stands now, does not extend to any
stage after the completion of the enquiry. Stage of imposition of punishment arises after
the completion of the enquiry and the finding is recorded. To such a stage the
“opportunity” mentioned in clause (2) of Article 311 as it stands now cannot be related.
The right to make a representation after the enquiry and before the imposition of the
penalty has been removed by the Constitution (Forty-Second) Amendment Act, 1976.
The intendment behind the amendment is clear intention to do away with the second
opportunity rule. T.K. Ramakrishnan v. Union of India, 1983(1) SLJ 68.
Article 311 applies to all Government servants holding permanent, temporary
or officiating post. The protection afforded is limited to the imposition of three major
penalties of dismissal, removal or reduction in rank. Ramanatha Pillai v. State of
Kerala, 1974(1) SCWR 1: AIR 1973 SC 2641: 1974(1) SCR 434: 1973(3) SCC 330:
1973 Lab IC 1602: 1974(1) SLR 225; Padam Prasad Sharma v. S.N.T. 1982(1) SLJ
431. See also Ram Subhag v. Union of India, 1988(4) SLR 139 Pat (DB).
Temporary Government servants or probationers are as much entitled to the
protection of Article 311(2) of the Constitution as the permanent employees despite the
fact that temporary government servants have no right to hold the post and their
services are liable to be terminated at any time by giving them a month”s notice without
assigning any reason either in terms of the contract of service or under the relevant
statutory rules regulating the terms and conditions of such service. The Courts can,
R. 14] PROCEDURE FOR IMPOSING PENALTIES 317
therefore, life the veil of an innocuously worded order to look at the real face of the
order and to find out whether it is as innocent as worded. Chandra Prakash Shahi v.
State of Uttar Pradesh, AIR 2000 SC 1706: 2000(3) SCR 529: 2000(5) SCC 152:
2000(2) SLR 772: 2000(3) SLJ 312: 2000 (3) LLN 21: 2000 (97) FJR 135.
Once a casual employee attains the “temporary” status, he becomes entitled to
certain benefits one of which is that he becomes entitled to the constitutional protection
envisaged by the Article 311 of the Constitution and other Articles dealing with
services under the Union of India. See Nar Singh Pal v. Union of India, AIR 2000 SC
1401: 2000 (2) SCR 752: 2000 (3) SCC 588: 2000 (1) LLJ 1388: 2000 (96) FJR 502:
2000 (2) SLR 592: 2000 (3) SLJ 332: 2000 Lab IC 1377: 2000 (2) LLN 407: 2000 (85)
FLR 458.
Even though the workers may have interest in the manner in which the
Company is conducting its business, inasmuch as its policy decision may have an
impact on the workers” rights, nevertheless it is an incidence of service for an employee
to accept a decision of the employer which has been honestly taken and which is not
contrary to law. Even a government servant, having the protection of not only Articles
14 and 16 of the Constitution but also of Article 311, has no absolute right to remain in
service. For example, apart from cases of disciplinary action, the services of
government servants can be terminated if posts are abolished. If the abolition of a post
pursuant to a policy decision does not attract the provisions of Article 311 of the
Constitution. The policy of disinvestment cannot be faulted if as a result thereof the
employees lose their rights or protection under Articles 14 and 16 of the Constitution.
In other words, the existence of rights of protection under Articles 14 and 16 of the
Constitution cannot possibly have the effect of vetoing the Government”s right to
disinvest. Nor can the employees claim a right of continuous consultation at different
stages of the disinvestment process. If the disinvestment process is gone through
without contravening any law, the normal consequences as a result of disinvestment
must follow. BALCO Employees” Union (Regd.) v. Union of India, AIR 2002 SC 350:
2002(2) SCC 333: 2002(1) LLJ 550: 2002(1) SCJ 123.
has to determine its form. The expressions “natural Justice” and “legal justice” do not
present a water-tight classification. It is the substance of justice which is to be secured
by both, and whenever legal justice fails to achieve this solemn purpose, natural justice
is called in aid of legal justice. Natural justice relieves legal justice from unnecessary
technicality, grammatical pedantry or logical prevarication. It supplies the omissions of
a formulated law. The adherence to principles of natural justice as recognised by all
civilised States is of supreme importance when a quasi-judicial body embarks on
determining disputes between the parties, or any administrative action involving civil
consequences is in issue. These principles are well settled. The first and foremost
principle is what is commonly known as audi alteram partem rule. It says that no one
should be condemned unheard. Notice is the first limb of this principle. It must be
precise and unambiguous. It should appraise the party determinatively the case he has
to meet. Time given for the purpose should be adequate so as to enable him to make his
representation. In the absence of a notice of the kind and such reasonable opportunity,
the order passed becomes wholly vitiated. Thus, it is but essential that a party should be
put on notice of the case before any adverse order is passed against him. This is one of
the most important principles of natural justice. It is after all an approved rule of fair
play. Canara Bank v. Debasis Das, 2003(4) SCC 557: 2003(3) SLT 729: 2003(2)
LLJ 531.
Though the precise contours of the principles of the natural justice are not easy
to define, in the past it was thought that it included two principles, namely (1) no one
shall be a judge in his own, and (2) no decision shall be given against a party without
affording him a reasonable hearing. Very soon thereafter a third rule was envisaged and
that is that quasi judicial inquiries must be held in good faith, without bias and not
arbitrarily or unreasonably. But in the course of years many more subsidiary rules came
to be added. A.K. Kraipak v. Union of India, AIR 1970 SC 150: 1970(1) SCR 472:
1969(2) SCC 240: 1969 SLR 445: 1970(1) SCJ 381. See also State Bank of India v. S.S.
Koshal, 1994(S2) SCC 468: 1994(27) ATC 834: 1995(5) SLR 181 (SC); Union of India
v. B.K. Srivastava, AIR 1998 SC 300: 1998(6) SCC 340: 1997(8) JT 573: 1997(5) SLR
80 (SC).
Some settled principles of natural justice for disciplinary proceedings broadly
stated are:—
(i) No one to be condemned unheard;
(ii) Copy of charge be given to delinquent officer intimating the
case against him along with list of documents and witnesses by
which charge is proposed to be proved;
(iii) delinquent officer be given reasonable time to submit his written
statement;
(iv) a party should have opportunity of adducing all relevant
evidence on which he relies, the evidence of opponent should be
taken in his presence and that he should be given opportunity of
cross-examining the witnesses examined by that party, no
material should be relied against him without his being given an
R. 14] PROCEDURE FOR IMPOSING PENALTIES 319
permanent post in a public service confers substantive right to the post and the person
appointed on that post becomes entitled to hold a lien on the post. He gets the right to
continue on the post till he attains the age of superannuation or is dismissed or removed
from service for misconduct etc. after disciplinary proceedings in accordance with the
Rules at which he is given a fair and reasonable opportunity of being heard. He may
also come to lose the post on compulsory retirement. Life Insurance Corporation of
India v. Raghavendra Seshagiri Rao Kulkarni, AIR 1998 SC 327: 1997 Supp (4) SCR
207: 1997(8) SCC 461: 1997(77) FLR 782: 1997(5) SLR 774: 1998(2) LLJ 1161: 1998
Lab IC 411: 1998(1) LLN 56: 1998(92) FJR 25.
(ii) It is well known that the civil servant has right at different stages of the
proceeding. His default at one stage will not take away his right at other stages of the
proceedings. Puran Chandra Das v. Chairman, State Transport Authority, Orissa, AIR
1970 Ori 1.
(i) Court has to see the Procedural Irregularity — (I) The guarantee under
Article 311 is of the regularity of the enquiry. If the enquiry is not vitiated on the
ground of any procedural irregularity, the Court is not concerned to decide whether the
evidence justified the order. Kshirode Behari Chakarvorty v. Union of India, 1970(1)
SCWR 325: 1970 SLR 321; State of A.P. v. Chitra Venkata Rao, AIR 1975 SC 2151:
1976(1) SCR 356: 1975(2) SCC 523: 1975 SLJ 772: 1976(1) SLR 653; Nand Kishore
Prasad v. State of Bihar, AIR 1978 SC 1277: 1978(3) SCR 708: 1978(3) SCC 366:
1978 Lab IC 1106: 1978(2) SLR 46: 1978 SLJ 591. Court”s power of judicial review in
such cases is limited and Court can interfere where the authority held the enquiry
proceedings in a manner inconsistent with the rules of natural justice or in violation of
statutory rules prescribing the mode of enquiry and imposing punishment or where the
conclusion or finding reached by the disciplinary authority is based on no evidence or is
such that no reasonable person would have ever reached. Food Corporation of India v.
A. Prahalada Rao, 2001(1) SCC 165: AIR 2001 SC 51: 2000(5) SLR 600: 2000(87)
FLR 899: 2001(2) SLJ 204: 2001 Lab IC 23.
(ii) Court not to Re-examine and Reassess Evidence — Neither the High
Court nor the Supreme Court can re-examine and reassess the evidence in writ
proceedings. K.L. Shinde v. State of Mysore, AIR 1976 SC 1080: 1976(3) SCR 913:
1976(3) SCC 76: 1976 SLJ 468: 1976(2) SLR 260: 1976 Lab IC 699; State of Haryana
v. Rattan Singh, 1977 SLJ 408: 1977(1) SLR 750: AIR 1977 SC 1512: 1977(2) SCC
491: 1977 Lab IC 845; Kanshi Ram Verma v. Municipal Committee, Mansa, 1981(1)
SLJ 203: 1981(1) SLR 290 (SC).
But at the same time merely dismissing the writ petition on the ground that
“findings of the enquiry officer, being findings of fact” cannot be interfered with in writ
jurisdiction is too broadly stated. Indeed, scope of judicial review in dealing with such
matters is limited but even that limited scope was held to have not been exhausted by
the High Court in this case. The matter was therefore remanded for fresh decision. Ram
Chandra Shukla v. State of Uttar Pradesh, 2001(4) Scale 439: 2001(6) Supreme 308:
2001(5) SLT 14.
Even if another view is possible in the matter, that will not be a ground to
interfere with the orders passed in the disciplinary proceedings. Anil Kapoor v. Union
of India, AIR 1999 SC 1528: 1998(9) SCC 47: 1999 Lab IC 603: 1999(81) FLR 26.
Dissatisfaction with evidence is no ground to interfere with the finding. Secretary to
Government, Home Deptt. v. Srivaikundathan, 1998(9) SCC 553: 1998(8) JT 470:
1998(2) LLJ 629: 1998(3) LLN 591: 1999(81) FLR 257.
(6) While applying the rule of audi alteram partem [the primary principle of
natural justice] the Court/Tribunal/Authority must always bear in mind the ultimate and
over-riding objective underlying the said rule, viz., to ensure a fair hearing and to
ensure that there is no failure of justice. It is this objective which should guide them in
applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of state or public interest may
call for a curtailing of the rule of audi alteram partem. In such situations, the Court may
have to balance public/State interest with the requirement of natural justice and arrive
at an appropriate decision.
R. 14] PROCEDURE FOR IMPOSING PENALTIES 325
See State Bank of Patiala v. S.K. Sharma, AIR 1996 SC 1669: 1996(3) SCR
972: 1996(3) SCC 364: 1996 SCC(L&S) 717: 1996(2) SLR 631: 1996(2) UJ 338:
1996(1) LLN 819: 1996(2) LLJ 296.
(iv) Perverse findings— Where the findings are perverse and are not supported
by evidence on record or the findings recorded at the domestic trial are such to which
no reasonable person would have reached, the Courts have power to interfere in the
matter. Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC
739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174:
2000(1) LLN 39. See also Food Corporation of India v. A. Prahalada Rao, 2001(1)
SCC 165: AIR 2001 SC 51: 2000(5) SLR 600: 2000(87) FLR 899: 2001(2) SLJ 204:
2001 Lab IC 23.
Judicial review of administrative action is feasible and same has its application
to its fullest extent in even departmental proceedings where it is found that the recorded
findings are based on no evidence or the findings are totally perverse or legally
untenable. The adequate or inadequacy of evidence is not permitted but in the event of
there being a finding which otherwise shocks the judicial conscience of the court, it is a
well-neigh impossibility to decry availability of judicial review at the instance of an
affected person. Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, 2001(1)
SCC 182: AIR 2001 SC 24: 2000(87) FLR 877: 2001(1) LLJ 583: 2001 Lab IC 11.
A broad distinction has to be maintained between the decisions which are
perverse and those which are not. If a decision is arrived at on no evidence or evidence
which is thoroughly unreliable and no reasonable person would act upon it, the order
would be perverse. But if there is some evidence on record which is acceptable and
which could be relied upon, howsoever compendious it may be, the conclusions would
not be treated as perverse and the findings would not be interfered with. Kuldeep Singh
v. Commissioner of Police, AIR 1999 SC 677: 1998 Supp (3) SCR 594: 1999(2) SCC
10: 1999(1) SLR 283: 1999(1) LLJ 604: 1999 Lab IC 437: 1999(80) ECR 265: 1999(2)
LLN 74: 1999(81) FLR 630: 1999(95) FJR 80: 1999(3) SLJ 111.
38. Reasonable opportunity, meaning of — Reasonable opportunity
contemplated by Article 311(2) means “Hearing in accordance with the principles of
natural justice under which one of the basic requirements is that all the witnesses in the
departmental enquiry shall be examined in the presence of the delinquent who shall be
given an opportunity to cross-examine them. Where a statement previously made by a
witness, either during the course of preliminary enquiry or investigation, is proposed to
be brought on record in the departmental proceedings, the law as laid down by this
Court is that a copy of that statement should first be supplied to the delinquent, who
should thereafter be given an opportunity to cross-examine that witness. Kuldeep Singh
v. Commissioner of Police, AIR 1999 SC 677: 1998 Supp (3) SCR 594: 1999(2) SCC
10: 1999(1) SLR 283: 1999(1) LLJ 604: 1999 Lab IC 437: 1999(80) ECR 265: 1999(2)
LLN 74: 1999(81) FLR 630: 1999(95) FJR 80: 1999(3) SLJ 111
A delinquent employee has the right of hearing not only during the enquiry
proceedings conducted by the Enquiry Officer into the charges levelled against him but
also at the stage at which those findings are considered by the Disciplinary Authority
and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does
326 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
not agree with the findings recorded by the Enquiry Officer. If the findings recorded by
the Enquiry Officer are in favour of the delinquent and it has been held that the charges
are not proved, it is all the more necessary to give an opportunity of hearing to the
delinquent employee before reversing those findings. The formation of opinion should
be tentative and not final. It is at this stage that the delinquent employee should be
given an opportunity of hearing after he is informed of the reasons on the basis of
which the Disciplinary Authority has proposed to disagree with the findings of the
Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the
Constitution as it provides that a person shall not be dismissed or removed or reduced
in rank except after an enquiry in which he has been informed of the charges against
him and given a reasonable opportunity of being heard in respect of those charges. So
long as a final decision is not taken in the matter, the enquiry shall be deemed to be
pending. Mere submission of findings to the Disciplinary Authority does not bring
about the closure of the enquiry proceedings. The enquiry proceedings would come to
an end only when the findings have been considered by the Disciplinary Authority and
the charges are either held to be not proved or found to be proved and in that event
punishment is inflicted upon the delinquent. That being so, the “right to be heard”
would be available to the delinquent up to the final stage. This right being a
constitutional right of the employee cannot be taken away by any legislative enactment
or Service Rule including Rules made under Article 309 of the Constitution. Yoginath
D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999 Supp (2) SCR 490:
1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1)
SLJ 174: 2000(1) LLN 39.
39. Departmental Enquiry: Holding of — Order to hold departmental
enquiry. It is not for High Court to declare that the order is invalid. State of Andhra
Pradesh v. Sree Rama Rao, AIR 1963 SC 1723: 1964(3) SCR 25: 1964(2) LLJ 150:
1964(1) SCJ 402; holding of regular departmental enquiry is a discretionary power of
the disciplinary authority which is to be exercised by considering the facts of each case
and if it is misused or used arbitrarily, it would be subject to judicial review. Food
Corporation of India v. A. Prahalada Rao, 2001(1) SCC 165: AIR 2001 SC 51: 2000(5)
SLR 600: 2000(87) FLR 899: 2001(2) SLJ 204: 2001 Lab IC 23.
There is no such principle of natural justice that before holding of regular
enquiry, the disciplinary authority itself should hold a preliminary enquiry by first
drawing up a charge memo and then calling for written statement of defence before
taking a decision to hold a regular departmental enquiry. Secretary to Government of
Tamil Nadir v. D. Subramanyan Rajadeven, 1996 (5) SCC 334.
40. Departmental Enquiry to deter Civil Servant from pursuing his Legal
Remedies — Departmental enquiry can be held for a misconduct. The act of civil
servants in presenting the writ petition under Article 226 of the Constitution to
vindicate their right and their act in persuading the other colleagues to join as writ
petitioners constitutes no misconduct and the action of the respondents in instituting the
disciplinary enquiry cannot but he characterised as arbitrary and capricious. Whoever is
responsible for the commencement of such disciplinary proceedings would be
committing a contumacious act punishable under the Contempt of Courts Act since
what that person would be doing is undoubtedly something by which he intends to deter
R. 14] PROCEDURE FOR IMPOSING PENALTIES 327
the civil servant from pursuing his legal remedy which is perfectly entitled to do. V.K.
Parameswaran v. Union of India, 1982 Lab IC 383: 1982(1) SLJ 516 Kar.
41. Departmental Enquiry not an Empty Formality — Departmental
proceeding is not an empty formality to be completed, but it is serious proceeding
intended to give the public servant a chance to meet the charges and to prove his
innocence. Jagdish Prasad Saxena v. State of M.B., AIR 1961 SC 1070: 1963(1) LLJ
325; Ram Lal v. Union of India, AIR 1963 Rajasthan 57; Anil Kumar Das v.
Superintendent of Post Offices, AIR 1969 Assam 99.
42. Departmental Proceeding a Two-sided Affair — A departmental
proceeding is a two sided affair, the officer drawing up the proceedings must be
reasonable and helpful in allowing the person who is charge-sheeted to meet the case,
equally, the latter must participate, instead of attempting to block the enquiry. Haripada
Moitra v. President Calcutta Improvement Tribunal, AIR 1970 Cal 154. See also
Bhagat Singh v. Union of India, 1994(7) SLR 743 (CAT Cal).
43. Order Sheet be Maintained Showing the Progress of the Enquiry from
Day to Day — The procedure of enquiry, as laid down under these rules, does warrant a
maintenance of an order sheet showing the various orders passed from time to time. In
the absence of an order-sheet it is difficult to know whether at the various stages the
enquiring officer or the disciplinary authority had followed the procedure without
prejudicing any of the rights of the Government servant. Anil Kumar Das v.
Superintendent of Post Offices, AIR 1969 Assam 99.
44. Procedure where Statute Silent — There is little hazard in asserting
today, that “the duty to act judiciously is implicit in the exercise of the power” to
dismiss an employee on charges of misconduct, even though the statute which confers
such power is silent about the procedure to be adopted. An inquiry, consonant with the
principles of natural justice, must therefore, be held before the statutory power of
dismissing an employee could be exercised by the employee. Rama Kant Banik v.
District School Board, AIR 1969 Cal 397.
The principles of natural justice is the best measure if there is absence of
statutory rules or administrative constructions. Asi Mohammad Shri v. Union of India,
1994(1) SLR 637 (CAT New Delhi).
But this does not apply to substantive rights. In one case, in the service rules no
specific provision was made for deducting any amount from the provident fund
consequent to any misconduct determined in the departmental enquiry nor was any
provision made for continuance of departmental enquiry after superannuation. Held that
in view of the absence of such provisions in the abovesaid regulations, it must be held
that the Corporation had no legal authority to make any reduction in the retiral benefits
of the appellant. There is also no provision for conducting a disciplinary enquiry after
retirement of the appellant and nor any provision stating that in case misconduct is
established, a deduction could be made from retiral benefits. Bhagirathi Jena v. Board
of Directors, O.S.F.C., 1999(3) SCC 666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2)
SLR 355: 1999(1) LLJ 1236: 1999 Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143:
1999(95) FJR 21: 1999(3) SLJ 294.
328 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
In Jagdhari Roy v. State of Bihar, 1969 SLR 152, it was held that in the
absence of an express prohibition in any of the service rules, it cannot be said as a
proposition of law that, merely because an officer has superannuated, all the
departmental proceedings pending against him must be deemed to have become
ineffective. It was further held that the Mysore case cited is based on service rules in
force in Mysore State and it cannot be applied mechanically in the State of Bihar.
In the absence of a specific rule, once a departmental enquiry is over and a
public servant is exonerated of the charges on merits, no second departmental inquiry
on the same facts can be ordered. K. Srinivasa Rao v. Director of Agriculture, A.P.,
1971(2) SLR 24 (AP): 1971 Lab IC 778; Prakash Nath Saidha v. Financial
Commissioner, 1972 SLR 601; Sanjib K. Sen v. Director of Admin., 1974(2) SLR 478:
1974 SLJ 692; Hridaya Narain Prasad v. State of Bihar, 1975(1) SLR 232; Collector of
Customs v. Rebati Mohan Chatterjee, 1976(2) SLR 897; State of Assam v. J.N. Roy,
AIR 1975 SC 2277: 1976(2) SCR 128: 1976(1) SCC 234: 1974 Lab IC 1681: 1976 SLJ
1; R. N. Atri v. Union of India, 1979 SLJ 12: 1979(1) SLR 527; Ganga Singh v. State of
Punjab, 1982(2) SLR 593.
45. No Regular Departmental Inquiry is Required While Imposing Penalty
in Certain Cases — No departmental inquiry is necessary while imposing penalty in
the following cases:.
(a) Where a person is dismissed or removed or reduced in rank on the ground
of conduct which had led to his conviction on a criminal charge; or.
(b) Where the authority empowered to dismiss or remove a person, or to reduce
him in rank is satisfied that for some reason, to be recorded by that authority in writing,
it is not reasonably practicable to hold such inquiry in the manner provided in these
rules; or.
(c) Where the President or the Governor, as the case may be, is satisfied that in
the interest of the security of the State it is not expedient to hold such inquiry.
Absence of regular inquiry does not invalidate compulsory requirement if—
(i) charge sheet is issued and employee shows no response; and.
(ii) show cause notice of proposed punishment is issued and no response is
received from employee. Bhishmadev Nayak v. Secretary to Govt. Fisheries and Animal
Husbandry Dept., Bhubaneswar, 1989(1) SLR 542 (Orissa Admn. Tribunal).
[Please see Commentary under Rule 19.].
Sub-rule (i)
46. (i) No Major Penalty can be Imposed Without an Enquiry — Rule 14(1)
provides that no order imposing any major penalty shall be imposed except after an
enquiry held as far as may be in the manner prescribed in Rules 14& 15. A regular
enquiry is to be held if major penalty is to be inflicted. Narayan Misra v. State of
Orissa, 1982(2) SLR 506. See also Bhagat Singh v. Union of India, 1994(7) SLR 743
(CAT Cal). Stopping of increments with cumulative effect is a major penalty. Therefore
R. 14] PROCEDURE FOR IMPOSING PENALTIES 329
enquiry for imposing penalty should be held in terms of Regulations. Mohinder Singh v.
State of Punjab, 1994 (27) ATC 448: 1995 Supp (4) SCC 433.
47. (ii) Interpretation of Expression “As far as may be” in Sub-rule (1) —
From a perusal of Rule 14, it appears that an elaborate inquiry is indicated in
conformity with what is known as the rules of natural justice. The expression “as far as
may be” in sub-rule (1) may admit of some variation but not if such a variation leads to
the prejudice of the Government servant or results in an ineffective representation of his
case before the authority. Anil Kumar Das v. Superintendent of Post Offices, AIR 1969
Assam 99.
48. Who should be Charged — It is for the disciplinary authority to consider
who should be charged and who should not be charged. No question of discrimination
arises if disciplinary authority was not satisfied that P should be charged along with the
petitioner. Bholanath v. Management of D.T.U., 1971(2) SLR 240 Delhi.
unless some prejudice has been caused to the delinquent. R.D.Gupta v. Union of India,
1992(3) SLR 804 (CAT New Delhi) (FB).
Generally speaking, it is not necessary that the charges should be framed by the
authority competent to award the proposed penalty or that the enquiry should be
conducted by such authority. Held that in the absence of any provision in the Rules
expressly taking away the power of appointing authority and disciplinary authority to
initiate disciplinary proceedings, framing of charge and conduct of inquiry by such
authority and not by the authority competent to impose penalty, is not illegal. Inspector
General of Police v. Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC 145: 1996
SCC(L&S) 433: 1996(32) ATC 663: 1996(2) SLR 470: 1996(1) UJ 424: 1996(74) FLR
2510: 1996(2) LLN 515: 1997(2) LLJ 191.
51. Charge should be Clear — Charge should be clear and not vague and
indefinite. The charge and the statement of facts form part of a single document.
Ramanand v. Divisional Mechanical Engineer, AIR 1962 Raj 265; Union of India v. Sri
Kula Chandra Sinha, AIR 1963 Tri 20; State of A.P. v. Sree Rama Rao, AIR 1963 SC
1723: 1964(3) SCR 25: 1964(1) SCJ 402. See also K.P. Agarwal v. Union of India,
1994(7) SLR 713 (CAT Jaipur); Sawai Singh v. State of Rajasthan, 1986(2) SLR 47 (SC).
Where charge sheet was concise but specific allegations were made against the
delinquent which could have been duly understood by the accused person and in fact
were understood by him as reflected from his reply to the charge sheet, and also the fact
that the delinquent at no stage raised any objection about the same, no infirmity with
the disciplinary proceedings can be found. State Bank of Bikaner and Jaipur v. Prabhu
Dayal Grover, AIR 1996 SC 320: 1995(6) SCC 279: 1996 Lab IC 210: 1996(72) FLR 1:
1996(1) LLJ 288: 1996(1) SLJ 145.
52. Charges must be Specific, Precise and not Vague — Material allegations
be mentioned in charge-sheet or appended to the charge-sheet. In order to afford
delinquent a reasonable opportunity for defence as envisaged by the provisions of
Article 311(2) of Constitution, he should be informed of the charges levelled against
him as well as of the allegations on which such charges are based. These charges should
be specific, precise and not vague and should convey to the delinquent official in the
clearest possible term the act of misconduct levelled against him. This can be done
either by giving the material particulars of the specific act of misconduct in the charge
itself or in the statement of allegations appended thereto. This statement of allegations
of the charges itself should give an idea of the evidence which is against him. Hari
Prasad Singh v. Commissioner of Income Tax, AIR 1972 Cal 27; State of U.P. v. Basish
Narain Singh, 1973(2) SLR 297; Ramphal v. State of Punjab, 1968 SLR 213: 1968 SLJ
315: 1968 Cur LJ 174.
Where memorandum of charges contained distinct articles of charge
accompanied by statement of imputations and list of documents, it was held that the
provision stood sufficiently complied. Director General, Indian Council of Medical
Research v. Anil Kumar Ghosh, 1998(3) SCR 1034: 1998(7) SCC 97: AIR 1998 SC
2592: 1998(3) CLT 112(SC): 1998(5) SLR 659: 1999(1) SLJ 288: 1998(80) FLR 180:
1999(1) LLJ 1036: 1998 Lab IC 3096: 1998(4) LLN 96.
R. 14] PROCEDURE FOR IMPOSING PENALTIES 331
A reading of charges showed that they were not specific and clear. They did not
point out clearly the precise charge against the respondent, which he was expected to
meet. One can understand the charges being accompanied by a statement of particulars
or other statement furnishing the particulars of the aforesaid charges but that was not
done. The charges are general in nature to the effect that the respondent alongwith eight
other officials indulged in misappropriation by falsification of accounts. What part did
the respondent play, which account did he falsify or help falsify, which amount did he
individually or together with other named persons misappropriate, are not
particularised. In this background and the fact that the delinquent was about to be
retired, the charge was quashed and directions were not passed for giving particulars of
charge. Transport Commissioner v. A. Radha Krishna Moorthy, 1995(1) SCC 332:
1995(29) ATC 112: 1995(1) SLR 239: 1995 Lab IC 1749: 1995(1) LLN 776.
However in another case it has been held that if the charge memo is totally
vague and does not disclose any misconduct for which the charges have been framed,
the Tribunal or the Court would not be justified at that stage to go into whether the
charges are true and could be gone into, for it would be a matter on production of the
evidence for consideration at the enquiry by the enquiry officer. At the stage of framing
of the charge, the statement of facts and the charge sheet supplied are required to be
looked into by the Court or the Tribunal as to the nature of the charges, i.e., whether the
statement of facts and material in support thereof supplied to the delinquent officer
would disclose the alleged misconduct. Deputy Inspector General of Police v. K.S.
Swaminathan, 1996 Supp (7) SCR 197: 1996(11) SCC 498: 1997(75) FLR 2: 1997(1)
SLR 176: 1997(2) LLJ 1011: 1997(3) LLN 289.
53. Necessary particulars must be given in charge-sheet — In the charge-
sheet no particulars with regard to the date and time of his alleged misconduct of
having entered Government forest and hunting a bull in that forest and thereby having
injured the feeling of one community by taking advantage of his service and rank were
not mentioned. Even the location of the incident in the vast forest was not indicated
with sufficient particularity. In the absence of these particulars the official was
obviously prejudiced in the matter of his defence at the inquiry. State of U.P. v. Mohd.
Sharif, AIR 1982 SC 937: 1982(2) SCC 376: 1982(1) SCJ 223: 1982 Lab IC 1234:
1982(2) SLR 265: 1982(2) SLJ 259.
The CAT, Hyderabad has held that rule 14(4), CCS (CCA) Rules is intended to
prevent the charges from being vague. Mere technical infraction of the rule (for
example for supplying a common list of documents) does not vitiate the proceeding. C.
Narayan Charu v. C.S.O., 1987(7) SLR 371.
54. Charge-sheet should not be Issued with a Biased and Closed Mind — It
is true that the charges against a delinquent officer must be clear and unambiguous but
at the same time the charge-sheet should not be issued with a biased and closed mind.
Surendra Chandra Das v. State of West Bengal, 1982 Lab IC 574: 1981(3) SLR 737 and
681.
55. Charge Based on Finding of Commission of Inquiry Rendered Behind
the Back of Appellant, Quashed — Disciplinary proceedings were initiated against the
appellant on the charge which was purely based on the finding given by the
332 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
Commission of Inquiry in its report. Findings were given by the commission without
giving any opportunity to the appellant to put forward his case in defence. These
findings cannot exclusively form the subject matter of any disciplinary enquiry. Writ of
mandamus for bearing the Respondents from taking any action against the Appellant
based on the report of Commission issued and charge quashed. N. Manoharam v. State
of Tamil Nadu, AIR 1981 Mad 147: 1981(1) SLR 417.
56. Charge Based on the Findings and Recommendations of Vigilance
Deptt.— The disciplinary authority in reality did not form its own prima facie opinion
but was influenced by the finding of the Vigilance Department and having accepted
such finding issued the charge-sheet, charge quashed. Surendra Chandra Das v. State of
West Bengal, 1982 Lab IC 574: 1981(3) SLR 737 & 681.
57. Charge not to be Based on Suspicion — Where certain charges were
based merely on suspicion, it was held that suspicion cannot be made a ground for
charging a person with guilt. Paresh Chandra Dutta v. Collector of Calcutta, 1979(1)
SLR 44. Sawai Singh v. State of Rajasthan, 1986(2) SCR 957: 1986(3) SCC 454: AIR
1986 SC 995: 1986 Lab IC 855: 1986(2) SLJ 265: 1986(2) SLR 47: 1986(2) ATR 316:
1986(5) ELJ (LS) 16: 1986 SCC (Lab) 662: 1986(2) SCWR 75: 1986(3) SCJ 25.
58. Charge-sheet Described as Memo — Where the charge-sheet was
described as a Memo and it showed that it was a Memo issued in connection with
disciplinary action, charges were formally framed and the Annexure gave detailed
particulars in support of the charges, in para 2 of this Memo the appellant was required
to show cause in writing as to why he should not be suitably dealt with and para 3 asked
him to say whether he would like to produce any evidence in support or would like to
be personally heard, there is hardly any doubt about the nature of the disciplinary action
intended to be taken. It cannot be said that there was no charge-sheet. There is no magic
in the word charge-sheet. Krishna Chandra Tandon v. Union of India, 1974(2) SLR
178: 1974 SLJ 415: AIR 1974 SC 1589: 1974(4) SCC 374: 1974 Lab IC 1010: 1975
SCC (Lab) 329.
59. Expression of Opinion in Charge-memo — (I) The expression of an
opinion by the enquiry officer in the charge memo that the delinquents had abused their
position and brought discredit to the department would vitiate proceedings. P.
Sreeramulu v. State of A.P., AIR 1970 AP 114.
(ii) Expression of opinion by the Disciplinary Authority in the charge-sheet and
the statement of allegations that the petitioner was guilty of the charges framed against
him shows that the Disciplinary Authority started with the assumption that the
petitioner was guilty of the charges framed against him and hence the disciplinary
enquiry was not held with an open and unbiased mind. Keshri Mal v. State of
Rajasthan, 1979(3) SLR 1.
60. Mention of Proposed Punishment in Charge-sheet — It is now fairly
settled that at the initial stage when charges are framed and served upon the delinquent
officer, the punishing authority or the inquiry officer should not propose what
punishment ultimately he is to be given. It is always best to avoid indicating
punishment in the show cause notice and the charge. Amarnath v. Commissioner, 1969
R. 14] PROCEDURE FOR IMPOSING PENALTIES 333
Cur LJ 484; M. Chinnappa Reddy v. State of A.P., AIR 1969 AP 234; Dr. S.S. Prabhu
v. Haryana Agriculture University, 1974(2) SLR 285; Meena Janah v. Dy. Director of
Tourism, W.B., 1974(1) SLR 466. Whether the punishment which was proposed to be
imposed was specified in the charge-sheet, held, it cannot be said that the disciplinary
authority conducted the enquiry with an unbiased and open mind. Keshri Mal v. State of
Rajasthan, 1979(3) SLR 1. See also D.I.G., Police v. K.S. Swaminathan, 1996(11) SCC
498: 1996(10) JT 140: 1996(8) AD(SC) 728: 1997(1) SLR 176 (SC); Gurcharan Singh
v. State of Punjab, 1997(3) SLR 403.
61. Actual service of chargesheet— Where the disciplinary proceedings are
intended to be initiated by issuing a charge-sheet, its actual service is essential as the
person to whom the charge-sheet is issued is required to submit his reply and,
thereafter, to participate in the disciplinary proceedings. So also, when the show-cause
notice is issued, the employee is called upon to submit his reply to the action proposed
to be taken against him. Since in both the situations, the employee is given an
opportunity to submit his reply, the theory of “Communication” cannot be invoked and
“Actual Service” must be proved and established. Union of India v. Dinanath
Shantaram Karekar, 1998(3) SCR 933: 1998(7) SCC 569: AIR 1998 SC 2722: 1999(1)
SLJ 180: 1998(80) FLR 446: 1998(2) LLJ 748: 1998 Lab IC 3021: 1998(4) LLN 14:
1999(94) FJR 10.
62. Delay in service of chargesheet— The meaning of the word “issued” has
to be gathered from the context in which it is used. The decision to initiate disciplinary
proceedings cannot be subsequent to the issuance of the charge-sheet is a consequence
of the decision to initiate disciplinary proceeding. The service of the charge-sheet on
the Government servant follows the decision to initiate disciplinary proceedings, and it
does not precede or coincide with that decision. The delay, if any, in service of the
charge-sheet to the Government servant, after it has been framed and despatched, does
not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as
information to the Government servant of the charges framed against him, by service of
the charge-sheet, is not a part of the decision making process of the authorities for
initiating the disciplinary proceedings. The contrary view would defeat the object by
enabling the Government servant, if so inclined, to evade service and thereby frustrate
the decision and get promotion in spite of that decision. D.D.A. V. H.C. Khurana,
(1993) 3 SCC 196.
63. Judicial review of chargesheet— Justifiability of the charges at this stage
of initiating a disciplinary proceeding cannot possibly be delved into by any court
pending inquiry but it is equally well settled that in the event there is an element of
malice or mala fide, motive involved in the matter of issue of a charge-sheet or the
concerned authority is so based that the inquiry would be a mere farcical show and the
conclusion are well known then and in that event law courts are otherwise justified in
interfering at the earliest stage so as to avoid the harassment and humiliation of a public
official. It is not a question of shielding any misdeed that the Court would be anxious, it
is the due process of law which should permeate in the society and in the event of there
being any affectation of such process of law that law courts ought to rise up to the
occasion. State of Punjab v. V.K. Khanna, AIR 2001 SC 343: 2001(2) SCC 330:
2000(5) SLR 734: 2001(1) SCJ 439: 2001 Lab IC 391.
334 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
The question whether charges against an employee are true or false fall within
exclusive jurisdiction of inquiry officer and a writ court cannot quash memorandum of
charge in the absence of adequate and compelling circumstances. Ajay Kumar Jain v.
High Court of Judicature for Rajasthan, 2002(3) SLR 200 Raj (DB).
In normal circumstances, the court in exercise of its power under Article 226
will not interfere at the initial stage when show-cause notice only had been issued.
However, these are not fetters on the powers of the Court. If the interest of justice so
requires, such a power can be exercised. H. Devinder Kumar (Sub Inspector No. 19) v.
State of Haryana, 2001(2) SLR 439 P&H (DB).
The employee approached the Tribunal merely on the information that the
charge sheet was about to be issued to him which in fact was issued during the
pendency of the matter before the Tribunal. It was held that the employee had full
opportunity to reply to the charge sheet and raise all the points available to him in such
reply and the Tribunal ought not to have entertained the application for quashing of the
charge sheet at such stage. Union of India v. Ashok Kacker, 1995 Supp (1) SCC 180:
1995(29) ATC 145: 1995(7) SLR 430.
Power of High Court to interfere with departmental inquiry is limited where it
has been initiated malafide order for oblique and order collateral purpose or no case
whatsoever has been made out. Bhajan Ch. Debnath v. State of Tripura, 2002(1) SLR
276 Gau.
In case of delay it has been held that Tribunal was right in ordering
reinstatement of the employee but it has no power to quash the charges and disciplinary
proceedings on the ground of delay alone. Union of India v. Raj Kishore Parija, 1995
Supp (4) SCC 235: 1996 SCC(L&S) 196: 1996(32) ATC 133.
In the case of charges framed in a disciplinary inquiry the Tribunal or Court
can interfere only if on the charges framed (read with imputation or particulars of the
charges, if any) no misconduct or other irregularity alleged can be said to have been m-
ade out or the charges framed are contrary to any law. At this stage, the Tribunal has no
jurisdiction to go into the truth of the charges or into the correctness or truth of the
charges. The Tribunal cannot take over the functions of the disciplinary authority. The
truth or otherwise of the charges is a matter for the disciplinary authority to go into.
Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to
Court or Tribunal, they have no jurisdiction to look into the correctness of the findings
recorded by the disciplinary authority or the appellate authority as the case may be.
Union of India v. Upendra Singh, 1994(3) SCC 357: 1994(27) ATC 200: 1994(207)
ITR 782: 1994(2) SLJ 77: 1994(1) SLR 831: 1994(84) FJR 515: 1994(68) FLR 762:
1994(1) LLJ 808: 1994(1) LLN 895.
While it is true that justifiability of the charges at the stage of initiating a
disciplinary proceeding cannot possibly be delayed into by any Court pending inquiry
but it is equally well settled that in the event there is an element of malice or mala fide,
motive involved in the matter of issue of a charge sheet or the concerned authority is so
biased that the inquiry would be a mere farcical show and the conclusions are well
known then and in that event law courts are otherwise justified in interfering at the
R. 14] PROCEDURE FOR IMPOSING PENALTIES 335
earliest stage so as to avoid the harassment and humiliation of a public official. It is not
a question of shielding any misdeed that the Court would be anxious, it is the due
process of law which should permeate in the society and in the event of there being any
affection of such process of law that courts ought to rise up to the occasion. State of
Punjab v. V.K. Khanna, AIR 2001 SC 343: 2000 AIRSCW 4472: 2001(2) SCC 330:
2001 SCC(L&S) 1010: 2000(3) JT Supp 349: 2000(5) SLR 734 (SC): 2001(1) ESC 81:
2001(1) Pun LR 262: 2001(1) UPLBEC 280.
When charges pertain not only to administrative irregularities but also financial
irregularities and disobedience, quashing of preliminary enquiry on the ground of
vagueness of allegations is not proper, especially when regular enquiry was yet to be
conducted. Held that the learned Single Judge had rightly dismissed the writ petition as
premature and it was not proper for the Division Bench to set aside that order and quash
the constitution of the Commission of Enquiry and holding of a preliminary enquiry.
Held further that it should have been appreciated that it was futile to pass such an order
as the Executive Committee had already taken a decision by that time to hold a regular
full- fledged enquiry and appointed an Enquiry Officer for that purpose. Rt. Rev.
B.P.Sugandhar Bishop in Medak v. D. Dorothy Dayasheela Ebeneser, 1996(4) SCC
406: 1996(2) SLR 818: 1996 SCC(L&S) 963: 1996(2) LLJ 936: 1996(74) FLR 1927.
65. Non-compliance of Rule 14(4) — A list of all the documents and witnesses
by which each article of charges is proposed to be sustained is to be given to the
Government servant under rule 14(4). The enquiry is liable to be quashed on the
grounds of non-compliance of rule 14(4). H.L. Sethi v. Municipal Corporation, Simla,
1982(2) SLJ 694: 1983 Lab IC 73; Court can give direction for supply of such
documents. Deepak Puri v. State of Haryana, 2000(10) SCC 373: 2001(1) LLJ 129.
Reliance on a document not annexed to the memorandum of charge for reaching the
conclusion of guilt is not proper. Ministry of Finance v. S.B. Ramesh, 1998(3) SCC
227: AIR 1998 SC 853: 1998(78) FLR 700: 1998(1) SLR 618: 1998(2) SLJ 67: 1998
Lab IC 623: 1998(1) LLN 968.
direction was given to supply the documents. Deepak Puri v. State of Haryana,
2000(10) SCC 373: 2001(1) LLJ 129.
When even the documents relied upon by the department in establishing the
charge have not been given to the delinquent, the conclusion is irresistible that the
delinquent had been denied a reasonable opportunity to defend himself in the
proceeding. Pepsu Road Transport Corporation v. Lachhman Dass Gupta, 2002(4) SLR
143 (SC): 2002(1) LLJ 544: 2001(9) SCC 523.
71. “Whether Desired to be Heard in Person”, a Valuable Right — The
right “to be heard in person” as provided in rule 14(4) is a valuable right and a denial of
this right may result in denial of reasonable opportunity. State of U.P. v. C.S. Sharma,
AIR 1963 All 94.
72. Opportunity to Explain to be Real — Opportunity to explain should be
real and not ritualistic; effective and not illusory and must be followed by a fair
consideration of the explanation offered. Ibrahim Kunju v. State of Kerala, AIR 1970
Ker 65.
73. Rights of Employee During Enquiry — Petitioner was supplied with
charge-sheet and was asked to show cause. He did not give any explanation to show
cause. He was not given any notice regarding the date of hearing when evidence was to
be led on behalf of the employer. Order of dismissal passed by punishing authority held
legal. It is well known that delinquent officer has rights at different stages of the
proceedings. His default at one stage will not take away his other rights. Puran
Chandra Das v. Chairman, State Transport Authority, AIR 1970 Orissa 1; Khem Chand
v. Union of India, AIR 1958 SC 300: 1958 SCJ 497: 1958 SLR 1081.
Sub-rule 5(a):
74. Revival of Proceedings After Long Lapse of Time, Dropped — Charges
were framed against the petitioner and he submitted his explanations. He also submitted
his explanation to the proposed punishment. For about three and half years he did not
hear any thing. During the interval, his temporary promotion was regularised. He was
also confirmed. Then a communication was received by him to show cause and after
receipt of reply, he was reduced in rank. Held, under the circumstances of the case the
petitioner is entitled to contend that his earlier explanation must be deemed to have
been accepted by the deptt. and the proceedings must be deemed to have been dropped
and there was no justification to revive the same. Order set aside. E.S. Athithyaraman v.
Commissioner, Hindu Religious and Charitable Endowment, 1971(2) SLR 41: 1971 Lab
IC 452: AIR 1971 Mad 170.
Though there was delay of 6 years between the occurrences and the inquiry,
there was full opportunity given to the appellant who had never taken the plea that the
delay had prejudiced him. It was held that inquiry was not vitiated by the delay. G.C.
Jain v. Union of India, 1988(7) SLR 256 (CAT Madras).
apprehension that the disciplinary authority who was holding the enquiry himself was
biased against him and had made up his mind to punish him, this bias vitiates the entire
enquiry proceedings, Brindaban v. State of U.P., 1973(1) SLR 11; Keshri Mal v. State
of Rajasthan, 1979(3) SLR 1.
In regard to the officer competent to hold inquiry, it was held that the inquiry
conducted by an authority subordinate to appointing authority, is not illegal. Joint
Secretary to the Home Department, Madras v. R. Ramalingam, 1996(10) SCC 234:
1996(5) SLR 311: 1996(74) FLR 2525: 1997(1) LLJ 115: 1997(3) LLN 306.
There is, a distinction between a defect in the enquiry and a lapse which almost
destroys the enquiry. Where the lapse is of the enquiry being conducted by an officer
deeply biased against the delinquent or one of them being so biased that the entire
enquiry proceedings are rendered void, the appellate authority cannot repair the damage
done to the enquiry. Where one of the members of the Enquiry Committee has a strong
hatred or bias against the delinquent of which the other members know not or the said
member is in a position to influence the decision- making, the entire record of the
enquiry will be slanted and any independent decision taken by the appellate authority
on such tainted record cannot undo the damage done. Besides where a delinquent is
asked to appear before a committee of which one member is deeply hostile towards
him, the delinquent would be greatly handicapped in conducting his defence as he
would be inhibited by the atmosphere prevailing in the enquiry room. Justice must not
only be done but must also appear to be done. Tilak Chand Magatram Obhan v. Kamala
Prasad Shukla, 1995 Supp (1) SCC 21: 1994(28) ATC 750: 1995(5) SLR 809.
340 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
78. Enquiry, Officer, Bias of — (i) Bias may be generally defined as partiality
or preference. It is true that any person or authority required to act in a judicial or
quasi-judicial matter must act impartially. “If however, “bias” and “partiality” be
defined to mean the total absence of pre-conceptions in the mind of the judge, then no
one has ever had a fair trial and no one ever will. The human mind, even at infancy, is
no blank piece of paper. We are born with predispositions and the processes of
education, formal and informal, create attitudes which precede reasoning in particular
instances and which, therefore, by definition, are prejudices”, [per Frank J in re:
Linahan (1943) 138F 2nd 650, 652].
It is not every kind of bias which in law is taken to vitiate an act. It must be a
prejudice which is not founded or reason, and actuated by self interest — whether
pecuniary or personal. Because of this element of personal interest, bias is also seen as
an extension of the principle of natural justice that no man should be a judge in his own
cause. Being a state of mind, a bias is sometimes impossible to determine. Therefore,
the Courts have evolved the principle that it is sufficient for a litigant to successfully
impugn an action by establishing a reasonable possibility of bias or proving
circumstances from which the operation of influences affecting a fair assessment of the
merits of the case can be inferred. G.N. Nayak v. Goa University, 2002(1) SCR 636:
AIR 2002 SC 790: 2002(2) SCC 712: 2002(1) SCJ 497: 2002(2) SLJ 308.
(ii) The function of an Enquiry Officer is that of a judge dealing with a case.
Such an officer should not be personally interested in the matter. He should be a person
having an open mind, a mind which is not biased against the charged officer. K. Sundra
Rajan v. Dy. Inspection General of Police, 1973 SLJ 100: 1972 SLR 723. In a
departmental enquiry if the delinquent officer reasonably apprehended that the Enquiry
Officer was biased against him, the entire enquiry proceedings were vitiated. Brindaban
v. State of U.P., 1973(1) SLR 111; Balwant Rai Mahajan v. V.P. Khosla, 1979(1) SLR 391.
(iii) The Commissioner (Enquiry Officer) in one of his letter stated that he had
heard witnesses and satisfied himself that Sharma was definitely corrupt. He was
biased. State of U.P. v. C.S. Sharma, 1967(II) SCWR 648: AIR 1968 SC 158: 1967(3)
SCR 848: 1969(1) LLJ 509: 1968 Lab IC 190: 1968(1) SCJ 262; Rai Bahdur Singh v.
S.D.O., 1975 Lab IC 682.
(iv) If a reasonable man would think on the basis of the existing circumstances
that the enquiry is likely to be prejudiced, that is sufficient to quash the decision.
Parthasarthi v. State of A.P., 1973(II) SCWR 464: AIR 1973 SC 2701: 1974(1) SCR
697: 1974(3) SCC 459: 1973 Lab IC 1607: 1973(2) LLJ 473: 1974 SLJ 286.
(v) Bias has to be established either by evidence or on the materials on record
which are relied upon by the Enquiring Officer in coming to his conclusion about the
guilt of the delinquent. Syed Rahimuddin v. Director General, C.S.I.R., 2001(9) SCC
575: 2001(3) JT 609: AIR 2001 SC 2418: 2001(2) LLJ 1246: 2002(4) SLR 165: 2001
Lab IC 2367.
79. Enquiry Officer who held Preliminary Enquiry — Officer who held
preliminary enquiry was appointed enquiry officer. This cannot be indicative of bias
against the civil servant. Govind Shankar v. State of M.P., AIR 1963 MP 115.
R. 14] PROCEDURE FOR IMPOSING PENALTIES 341
80. Enquiry officer, Prejudice of — The fact that the punishing authority
considered the report and comes to his own conclusion would not cure the defect
attached to the enquiry conducted by an officer having bias against the charged officer.
The entire proceedings would be vitiated as its foundation is itself vitiated by the bias
of Enquiry Officer. K. Sundera Rajan v. Dy. Inspection General of Police, 1973 SLJ
100: 1972 SLR 723.
81. Enquiry Officer to Act with Detachment — Enquiry officer must act with
the detachment of a judge, since he is professing to exercise that dignified function.
Choudhary v. Union of India, AIR 1956 Cal 602; P. Sreeramulu v. State of A.P., AIR
1970 AP 114.
82. Enquiry Officer to have Open Mind — The rule of natural justice is that
bias vitiates the finding. Enquiry officer selected should be a person with an open mind.
An open mind should be kept with regard to charges made against a Government
servant until the charges are proved. Rao Rallapalli Suryanarayna v. State of Andhra
Pradesh, 1968 SLR 77; Amar Nath v. The Commissioner, 1969 Cur LJ 484.
83. Enquiry Officer not to Cross-examine Defence Witnesses — Cross
examination of defence witnesses by the Enquiry Officer was in plain violation of the
principles of natural justice and consequently the inquiry proceedings were vitiated.
Abdul Wajeed v. State of Karnataka, 1981(1) SLR 454: 1981(1) SLJ 388.
84. Enquiry Officer, Whether Independent — Mere fact that enquiry officer
is subordinate to the disciplinary authority is no indication of the fact that he could not
form his own independent judgement and was under the influence of his superior.
Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269; Ram Naresh Lal v.
State of U.P., AIR 1967 All 384.
85. Enquiry Officer, Used his Personal Knowledge of Facts — Because
enquiry officer has prior knowledge of the facts on which the charges have been drawn,
bias can not be alleged. Anil Behari Saran v. State of Bihar, AIR 1967 Pat 43. Where
the enquiry officer has taken into consideration his personal knowledge about the
petitioner while deciding as to whether petitioner is guilty of charges levelled against
him, held, this is a serious defect in conducting the enquiry against the petitioner. If the
enquiry officer wanted to use his personal knowledge, he should have offered himself
as a witness, so that the petitioner could have cross examined him. Satya Prakash
Varshney v. Union of India, 1980(3) SLR 64; Ambala Board of Education v. Beant
Singh, 1982(2) SLR 317.
86. Director Authorised to Conduct Enquiry Reverted as Dy. Director: No
Jurisdiction to Hold Enquiry — Government only authorised the Director to conduct
the enquiry. When Director reverted as Deputy Director he examined all witnesses,
completed the enquiry and had drawn up the report of enquiry when Government
ordered that Deputy Director might continue the enquiry. The Director could not
delegate the power to Deputy Director to continue the enquiry. The Inquiring Officer
(Dy. Director) had no jurisdiction to conduct the enquiry. S. Parthasarth v. State of
A.P., 1973(II) SCWR 464: AIR 1973 SC 2701: 1974(1) SCR 697: 1974(3) SCC 459:
1973 Lab IC 1607: 1973(2) LLJ 473: 1974 SLJ 286.
342 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
Sub-rule (5)(c).
87. Legal Practitioner, Meaning of — “Legal Practitioner” means advocate,
vakil or attorney of any High Court, a pleader, mukhtar or revenue agent” “advocate”
means an advocate entered in any roll under the provisions of Advocates Act, 1961;
“attorney” include a solicitor (Section 2, Advocates Act, 1961).
Sub-rule (7).
88. Falling to Appear for Non-payment of Subsistence Allowance —
Appellant was suspended and was called upon to appear before Enquiry Officer. He
made representations to the Government and the Enquiry Officer that he was not being
paid subsistence allowance and on that account he was unable to appear at the place of
enquiry which was five hundred miles away from the place he was residing. Enquiry
held ex prate and he was dismissed. Held, the appellant did not receive a reasonable
opportunity of defending himself in the enquiry proceedings and the order of dismissal
cannot stand. Ghanshyam Das Shrivastava v. State of M.P., 1973(I) SCWR 391: AIR
1973 SC 1183: 1973(1) SCC 656: 1973(1) LLJ 414: 1973 SLJ 356: 1973(27) FLR 466;
however, see Banshidhar Panigarhi v. State of Orissa, 1975(2) SLR 725.
Non-payment of subsistence allowance from the date of suspension till removal
and employee not appearing in departmental enquiry and giving financial crunch on
account of non-payment of subsistence allowance and illness as reason for not
participating in Disciplinary Proceedings. Held that it was a clear case of breach of
principle of natural justice on account of denial of reasonable opportunity to delinquent
to defend himself in the departmental enquiry. Jagdamba Prasad Shukla v. State of
Uttar Pradesh, AIR 2000 SC 2806: 2000(7) SCC 90: 2000(2) LLJ 1513: 2000 Lab IC
3111: 2000(5) SLR 164: 2000(87) FLR 1: 2000(97) FJR 304.
89. Failing to Appear for Non-payment of Certain Amount of Salary —
Petitioner was in enjoyment of his full salary of Grade II. He did not participate in the
enquiry because he was not given the pay of Grade I difference approximately Rs. 25 to
Rs. 30 p.m. Not sufficient reason for absenting from enquiry. Naseeruddin Nazar v.
State of Rajasthan, 1977 SLJ 182: 1977(1) SLR 696; Ghanshyam Das Shrivastava v.
State of M.P., 1973(I) SCWR 391: AIR 1973 SC 1183: 1973(1) SCC 656: 1973(1) LLJ
414: 1973 SLJ 356: 1973(27) FLR 466, distinguished.
Sub-rule (8).
90. Assistance of Another Government Servant: Affording of — Enquiry
Officer did not afford the appellant necessary facility to have the assistance of another
Government servant in defending him which assistance he was entitled to under the
rule. Reasonable opportunity to defend himself not afford. C.L. Subramaian v.
Collector of Customs, 1972(1) SCWR 540: AIR 1972 SC 2178: 1972(3) SCR 485:
1972(3) SCC 542: 1973(2) SCJ 488: 1972 Lab IC 1049: 1973(26) FLR 170: 1972(1)
LLJ 465.
Clause (8) has been made for the benefit of the charged Government servant in
case he wants to take the assistance of another Government servant in order to enable
himself to defend properly. It is not mandatory for the authorities to provide the
R. 14] PROCEDURE FOR IMPOSING PENALTIES 343
assistance to an employee of a person of his choice alone. In case the choice made by a
Government servant is such that it is not possible or practicable for the Government to
comply with the said request of Government servant, then it cannot be held that clause
(8) has been violated. This clause is directory and not mandatory. Under this clause if a
Government servant cannot take the assistance of any other Govt. servant, then right
has been given to him to apply before the disciplinary authority for providing assistance
of a legal practitioner. After considering the facts and circumstances of the case it is
open to the disciplinary authority to provide such assistance to the charged servant. The
extent of the right of a charged employee to get the assistance of another Government
servant or that of a lawyer depends upon the facts and circumstances of each case.
Mahabir Singh Gaur v. Union of India, 1978 SLJ 690: 1979(1) SLR 245; Krishna
Gopal Sharma v. Union of India, 1979(2) SLR 839.
The law in this country does not concede an absolute right of representation to
an employee in domestic enquiries as part of his right to be heard and that there is no
right representation by some body else unless the rules or regulation and standing
orders, if any, regulating the conduct of disciplinary proceedings specifically recognize
such a right and provide for such representation. Irrespective of the desirability or
otherwise of giving the employees facing charges of misconduct in a disciplinary
proceeding to ensure that his defence does not get debilitated due to inexperience or
personal embarrassments, it cannot be claimed as a matter of right and that too as
constituting an element of principle of natural justice to assert that a denial thereof
would vitiate the enquiry itself. Held that denial of representation by an employee
against whom two disciplinary matters were pending held to be not arbitrary. Indian
Overseas Bank v. Indian Overseas Bank Officers” Association, 2001(9) SCC 540:
2001(8) JT 306: AIR 2001 SC 4007; See also N. Kalindi & Ors. v. M/s Tata Locomotive
& Engineering Co. Ltd., AIR 1960 SC 914, Dunlop Rubber Co. (India) Ltd. v. Their
Workmen, AIR 1965 SC 1392; Crescent Dyes & Chemicals Ltd. v. Ram Naresh
Tripathi, 1993(2) SCC 115; Bharat Petroleum Corpn. v. Maharashtra General Kamgar,
1999(1) SCC 626.
natural justice and therefore, order of termination is illegal. Surjit Singh Kirpal Singh v.
State of Gujarat, 1993(3) SLR 664 Guj.
Inquiry officer allowed representations of employee by a person employed in
different division but denied opportunity to be represented by a person in same
Division. Held that principles of natural justice were not violated by Inquiry Officer.
Life Insurance Corporation of India, Bombay v. Subhash N. Ghodke, 1999(5) SLR 369 Bom.
91. Assistance by Government Servant having Two Pending Disciplinary
Cases on Hand — Declining for assistance by Govt. servant having two pending
disciplinary cases on hand cannot be said denial of reasonably opportunity to delinquent
official under Rule 14(8). Issac Joseph v. Senior Supdt. of Post Offices, Ernakulam,
1982(2) SLR 269: 1983 Lab IC 145.
92. Approval of Disciplinary Authority not Necessary — Government
servant can take the assistance of any other Govt. servant to present the case on his
behalf. The approval of Disciplinary Authority is not necessary. K. Santhanam v. Union
of India, 1969 SLR 752: 1970 Lab IC 98 Mysore. This is subject to Note to Rule 8(a)
and sub-clause (b) to Rule 8.
93. Assistance by Retired Government Servant — A Govt. servant can take
the assistance or retired Govt. servant subject to the condition that the said Govt.
servant retired from the service under the Central Government, at the time of
appearance has only two pending disciplinary cases in hand, and that he retired not
more than three years ago. A certificate that he had only two cases in hand at that time
and a declaration regarding the date of retirement should be filed before the inquiry
officer. If the said retired Govt. servant is also a legal practitioner, the restrictions
regarding his engagement given in sub-rule (8)(a) would apply to him.
94. Legal Practitioner, engagement of, When can be Allowed — The normal
rule in departmental proceedings is that delinquent cannot claim as a matter of right that
he should be allowed to be represented by legal practitioner when the presenting officer
appointed by disciplinary authority is not a legal practitioner. It will depend on the
circumstances of each case whether the denial to be represented by a lawyer amounted
to denial of reasonable opportunity.
The basic principle is that an employee has no right to representation in the
departmental proceedings by another person or a lawyer unless the Service Rules
specifically provide for the same. The right to representation is available only to the
extent specifically provided for in the Rules. Bharat Petroleum Corporation Ltd. v.
Maharashtra General Kamgar Union, AIR 1999 SC 401: 1999(1) SCC 626: 1999(1)
LLJ 352: 1999 Lab IC 430: 1999(1) LLN 654: 1999(81) FLR 358.
In Dr. K. Subba Rao v. State, AIR 1957 AP 414, it was observed, “It might be
that, in the opinion of the Enquiry officer, the case did not require specialised
professional help but from the point of view of the petitioner, it was a serious matter
which affected his official carrier and which might, as indeed it has happened in this
case, resulted in his dismissal from service, rightly or wrongly when the petitioner was
under a reasonable apprehension that the enquiry was the result of preconceived plan
and a concerned action on the part of the department, his request for professional help
R. 14] PROCEDURE FOR IMPOSING PENALTIES 345
was certainly justified and the enquiry officer should have given him that opportunity.
His refusal to accede to that simple request has certainly deprived the petitioner in the
circumstances of the case of an opportunity to defend himself”.
In Nipendra Singh v. Chief Secretary, Government of West Bengal, AIR 1961
Cal 1, it was held that having regard to the volume of depositions and the number of
witnesses and documents, the refusal to allow the assistance of a lawyer to the charged
officer notwithstanding that he was himself a District Judge, amounted to denial of
reasonable opportunity under Article 311(2) of the Constitution.
A Division Bench of Andhra Pradesh while deciding the case: Rao Rallapalli
Suryanarayan v. State of A.P., 1968 SLR 77 observed: “We are not able to find any
possible reasons why the Enquiry Officer should have rejected such a simple request of
the petitioner to engage a lawyer, though the enquiry relates to question of fact
nevertheless, the manner in which the enquiry is to be conducted and the scope and
intricacies involved in the interpretation of Article 311, are certainly matters on which
the petitioner should have the guidance of legally trained person. If the petitioner is not
really capable of entering on his defence with the degree of efficiency except with the
assistance of a lawyer, any opportunity given to him to defend the case by himself
cannot be regarded as an opportunity in real sense of the term.”.
In Baidhar Das v. State, AIR 1970 Ori 220, Anti-corruption Inspection was
nominated to present case in support of charges which was objected to by delinquent
but his objection was rejected. The representation of delinquent by lawyer was also not
allowed. Large number of witnesses and documents were produced in support of the
charges. Held, in the facts and circumstances of the case, the disciplinary authority
acted contrary to spirit of Article 311(2) of the Constitution. The enquiry was thus vitiated.
Venkateswara Rao J. in State of A.P. v. Mohammad Sarwar, 1971(1) SLR 507,
observed: “It is true that the question of granting or refusing to grant permission to
engage a lawyer is in the discretion of the Enquiry Officer, but this discretion has got to
be exercised judiciously and not in capricious manner. Withholding of permission to
engage a lawyer in the circumstances of the case cannot for a moment be said to be
resulted of proper exercise of the discretion vested in the authority concerned”. The
circumstances of the case were that the respondent and another person were facing a
joint enquiry, a number of witnesses were examined besides making numerous
documents in the course of enquiry, the respondent was not a highly educated man and
he should have been in a very disturbed state of mind during the enquiry.
The Supreme Court in C.L. Subramanian v. Collector of Customs, 1972(1)
SCWR 540: AIR 1972 SC 2178: 1972(3) SCR 485: 1972(3) SCC 542: 1973(2) SLR
415: 1972 Lab IC 1049: 1973(26) FLR 170: 1972(1) LLJ 465: 1973(2) SCJ 488, held
that the fact that case against the appellant was being handled by a trained prosecutor
was a good ground for allowing the appellant to engage a legal practitioner to defend
him lest the scale should be weighed against him. Since disciplinary authority failed to
exercise power conferred on it under the rule, there was denial of reasonable opportunity.
The Calcutta High Court Division Bench in Director General of Post
&Telegraphs v. Nani Gopal Majumdar, 1973(2) SLR 366: 1973 SLJ 852, held that it
346 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
seems clearly obligatory upon the disciplinary authority to, firstly allow the assistance
of a legal practitioner to Govt. servant if the person nominated by the disciplinary
authority for presentation of its case is also a legal practitioner; even if it is not so, then
also it is equally obligatory upon the disciplinary authority to consider all other relevant
circumstances of the case and then either to record or refuse such permission. In other
words, even where there is no legal practitioner nominated on behalf of the disciplinary
authority, the disciplinary authority is bound to consider the facts and circumstances of
the given case before it could refuse permission to engage a legal practitioner to assist
the Govt. servant. It would, therefore, be a clear breach of duty on the part of the
disciplinary authority if it would refuse to allow the petitioner to engage a legal
practitioner only on the view that a legal practitioner was nominated by the disciplinary
authority in presenting its own case. See also S.Y. Venkateswaralu v. Director General,
1978 SLJ 434: 1978(2) SLR 309.
Where there was no conflict of interest between the appellant and Concurrent
finding of Court below Concurrent finding of Court below three other civil servants
and the counsel representing the other three civil servants was allowed to represent the
appellant and it is not proved that counsel was unable to conduct the defence properly,
it cannot be said that the appellant had no reasonable opportunity to defend himself. R.
Jeevaratnam v. State of Madras, AIR 1966 SC 651: 1966(2) SCR 204: 1966(II) SCWR
464: 1967(1) SCJ 404.
In Hari Prasad Singh v. Commissioner of Income tax, AIR 1972 Cal 27 and
Krishna Chandra Tandon v. Union of India, 1974 SLJ 415: 1974(2) SLR 178: AIR
1974 SC 1589: 1974(4) SCC 374: 1974 SLJ 415, the appellant was Income Tax Officer
and all he had to do in the course of enquiry was to defend the correctness of the
assessments made by him and no witnesses were to be cross-examined. It was held that
the refusal to allow the assistance of an advocate did not deprive the appellant of a
reasonable opportunity to defend himself. See also, Kishan Gopal Sharma v. Union of
India, 1981(1) SLR 775: 1979(2) SLR 839; Sunil Kumar Banerjee v. State of West
Bengal, 1980(2) SLR 147: AIR 1980 SC 1170: 1980(3) SCR 179: 1980(3) SCC 304:
1980(40) FLR 434: 1980(2) SCJ 327. In Dr. Tauhid Hossain v. State of West Bengal,
1982(2) SLR 602, the rejection of the request for appointment of a lawyer was not held
in violation of principle of natural justice as there was a simple charge of
misappropriation of Rs. 100/- only.
The above case law should be kept in view by the Disciplinary Authorities and
the Enquiry Officers while exercising their discretion to permit or refuse the prayer of
delinquent for being represented by a legal practitioner. They should bear in mind that
the long drawn out proceedings may be declared null and void by the Court for their
failure to exercise the discretion judiciously and carefully.
David Annoussamy, Vice Chairman and C. Venkataraman, Member, CAT
Madras have held, with reference to rule 14(8)(a), CCS Rules, that where under the
rules a Government servant has a right to lawyer, the lawyers” expenses must be paid
by the State. S.S. Pandian v. Director of B.C.G. Vaccine Laboratory, 1989(6) SLR 447
(CAT, Madras). The Bench relied, inter alia, on Article 39A of the Constitution used
which the State shall secure that the operation of the legal system promotes justice on
R. 14] PROCEDURE FOR IMPOSING PENALTIES 347
the basis of equal opportunity and shall, in particular, provide free legal aid by suitable
legislation or schemes or in any other way to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disabilities.
As per rule 14(8)(a), CCS (CCA) Rules, it is a right of the Government servant
to have a legal practitioner to assist him, if the presenting officer is a legal practitioner.
In such a case, the legal practitioner appearing on behalf of the Government servant
should be paid by the State. S. Pandain v. Director of B.C.G. Vaccine Laboratory,
Madras, 1990(1) SLT 5 CAT, Madras: 1990(13) ATC 659 Mad.
Defence assistance appointed with the approval of the inquiry officer is entitled
to Travelling Allowance and Daily Allowance for attending the proceedings of the
disciplinary inquiry. R.M. Batish v. Union of India, 1989(7) SLR 647 (CAT
Chandigarh).
When allegations against the Bank officers were simple and not complicated, it
was held that denial of assistance of an advocate was not violative of principles of
natural justice. Harinarayan Srivastav v. United Commercial Bank, 1997 (4) SCC 384.
The enquiry officer has a discretion in the matter of permitting the assistance of
an advocate, Unless it is found that the said discretion has been exercised in a perverse
manner or that the exercise of discretion is vitiated by a mis-direction in law, no
interference is called for under Article 226 with the discretion of the officer. Municipal
Corporation of Greater Bombay v. Chhotalal Gajanan Khole, 1996(3) Scale(SP) 26(2).
95. Legal Practitioner: Payment of fee— Where the employee was unable to
bear the fee of the advocate engaged by him to defend him in Enquiry, direction given
by Tribunal to employer, regarding payment of legal charges payable to his advocate on
the same rate as payable to the presenting officer who was also a legal practitioner, was
upheld. Director BCG Vaccine Laboratory, Madras v. S. Pandian, 1997(11) SCC 346:
1996(2) LLJ 634: 1996(1) LLN 799
Sub-rule (9)
96. Admission of Facts, Whether Plea of Guilty — A person who admitted
the facts and did not wish to cross-examine any witness or lead evidence on his behalf,
on the whole therefore the admission was one of guilty is so far as the facts on which
the enquiry was held. Channabassappa Basappa Happali v. State of Mysore, 1971(2)
SCR 645: AIR 1972 SC 32: 1971(1) SCC 1: 1971 SLR 9: 1972 Lab IC 1: 1971 SCD 74:
1971(2) SCJ 412 .
Where there is no unequivocal admission of the charge, rule 14(9) CCS (CCA)
Rules, 1965 must be complied with. Otherwise the inquiry is vitiated. N.
Sundaramurthy v. Lieutenant Governor, Pondicherry, 1990(6) SLR 212 (CAT Madras).
97. Admission of Delinquent Officer should be Taken as a Whole and Not
only the Part Thereof — The admission amounting to confession or not cannot be split
up. An admission must be used either as a whole or not at all. Satya Prakash Varshney
v. Union of India, 1980(3) SLR 64; State of Punjab v. Sukhdev Singh, 1983(3) SLR 29.
348 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
As per Rule 14(1), CCS (CCA) Rules, the applicant can have inspection of
documents proposed to be relied upon by the prosecution. If delinquent does not apply
for copies, then not giving the copies is not violation of natural justice. A. Philip v.
Director General of Ordnance Factories, Calcutta, 1990(13) ATC 641: 1990(2) SLJ
(CAT) 630: 1990(2) ATJ 552 Mad.
If the Enquiry Officer relies on a document not referred to in the list supplied
to the delinquent the inquiry is liable to be quashed. H.L. Sethi v. Municipal
Corporation, Simla, 1982(2) SLJ 694.
Obviously, the burden is heavily on the person claiming the privilege to show
that a disclosure of the contents of the documents would be gravely injurious to public
interest. State of U.P. v. Raj Narain, AIR 1975 SC 865: 1973(3) SCR 333: 1975(4) SCC
428: 1975(1) SLR 541; M.L. Trighatia v. State of Haryana, 1976(1) SLR 20.
SCJ 302: 1977 Lab IC 849: 1977 SLJ 198; In another case direction was given to supply
the documents. Deepak Puri v. State of Haryana, 2000(10) SCC 373: 2001(1) LLJ 129
and in yet another case after setting aside dismissal matter was again remanded to
enquiry officer. Uttar Pradesh Financial Corporation v. V.P. Sharma, 2001 Supp (1)
JT 26: 2001(3) SLT 272: 2001(4) SLR 605.
One of the principles of natural justice is that a person against whom an action
in proposed to be taken has to be given an opportunity of hearing. This opportunity has
to be an effective opportunity and not a mere pretence. In departmental proceedings
where charge-sheet is issued and the documents which are proposed to be utilised
against that person are indicated in the charge sheet but copies thereof are not supplied
to him in spite of his request, and he is, at the same time, called upon to submit his
reply, it cannot be said that an effective opportunity to defend was provided to him.
State of Uttar Pradesh v. Shatrughan Lal, 1998(6) SCC 651: AIR 1998 SC 3038:
1998(5) SLR 43: 1999(1) SLJ 213: 1998(80) FLR 389: 1998(2) LLJ 799: 1998 Lab IC
3489: 1998(4) LLN 639: 1999(94) FJR 36 .
cancellation of certificate. State Bank of India v. Luther Kondhpan, 1999(9) SCC 268:
2000(1) LLJ 275: 2000(2) LLN 66.
Numerous adjournments were granted to the respondent and on many dates of
hearing, he was stated to be on leave on account of ill- health. Respondent was given
opportunity to inspect the record which he did. Held that it cannot be said that as he
was not given photo copies of certain documents, he had been prejudiced in the defence
of his case. Union of India v. B.K. Srivastava, 1998(6) SCC 340: AIR 1998 SC 300:
1997(77) FLR 786: 1998(1) LLJ 431: 1998(1) LLN 340.
When inspite of non supply of documents, the petitioner could reply to the
show cause notice and could defend his case and in the written brief submitted by him,
no whisper of suffering any prejudice due to non supply of documents was made, held
that no violation of natural justice was made out. Biswanath Ray v. Chairman & M.D.
Allahabad Bank, 2001(1) SLR 6 Cal.
106. Whether Copies of Statements Recorded During Preliminary Enquiry
should be Supplied to Delinquent Government Servant — A civil servant has a right
to two classes of documents in order to defend himself. In the first class are the
documents on which the Inquiry Officer relies, that is to say documents which are
intended to be used by the prosecution agency to prove the charges against the civil
servant. In the second class fall the documents which, even if they are not relied upon
by the Inquiry Officer to support the charges against the civil servant, are nevertheless
required by the civil servant for his defence. Note to sub-rule (11)(ii) confers on the
civil servant a right to ask for copies of statement of witnesses mentioned in the list
referred to in sub-rule (3) in order to enable him to contradict the witnesses to be
examined against him in the departmental enquiry. An important aspect of his defence
is to cross examine witnesses against him by using their previous statements to
contradict them. To deny the copies of statements recorded during preliminary enquiry
would mean the denial of right to defend himself by effective cross-examining by using
the previous statements. Even apart from Note referred to supra such a right is included
in the minimum content of the rules of natural justice applicable to a disciplinary
inquiry. See Jagunat Singh v. Delhi Administration, 1970 SLR 400; Union of India v.
Ravi Dutt, 1973(1) SLR 1222.
Supreme Court in State of Punjab v. Bhagat Ram, AIR 1974 SC 2335: 1975(2)
SCR 370: 1975(1) SCC 155: 1974 Lab IC 1442: 1975(1) SLR 2: 1975 SLJ 88, held:
“The Government servant should be given an opportunity to deny his guilt and establish
his innocence. He can do so when he is told what the charges against him are. He can
do so by cross examining the witnesses produced against him. The object of supplying
statements is that the Govt. servant will be able to refer to the previous statements of
the witnesses proposed to be examined against the Govt. servant. Unless the statement
are given to the Govt. servant he will not be able to have an effective and useful cross-
examination. It is unjust and unfair to deny the Govt. servant copies of statements of
witnesses examined during investigation and produced at the inquiry in support of the
charges levelled against the Govt. servant. A synopsis does not satisfy the requirements
of giving the Govt. servant a reasonable opportunity of showing cause against the
action proposed to be taken.
R. 14] PROCEDURE FOR IMPOSING PENALTIES 353
The Inquiry Officer after submission of the reply by the employee not holding
any date of inquiry for straightaway submitting inquiry report. The issue involved could
not be decided without holding an inquiry. Held that inquiry is initiated being violative
of principles of natural justice. H.S. Mishra v. Secretary/General Manager Mau-Aima
Sahkari Katai Mills Ltd., 2002(3) SLR 709 All.
109. Language of inquiry— The proceedings of inquiry conducted in English
while employee was not conversant with English. No assistance of any advocate given
to worker. Inquiry rightly held to be vitiated on account of violation of principles of
natural justice. Voltas Ltd., Patancheru, Medak District v. Presiding Officer, Labour
Court-II, Hyderabad, 1999(5) SLR 699 AP (DB).
110. Enquiry Officer not to Record Evidence on Allegation Extraneous to
the Charge — The enquiry officer should not record evidence on allegations
extraneous to the charge as it will prejudice him against the delinquent. State of Assam
v. Mohan Chandra Kalita, 1972(II) SCWR 375: AIR 1972 SC 2535: 1973(1) SLR 401:
1972(4) SCC(N) 11; Narayan Misra v. State of Orissa, 1982(2) SLR 506.
111. Enquiry Officer, Role of — The enquiry officer is not the prosecutor in
the case. It is not his duty to somehow prove the charge. It is not for him to assume that
the delinquent officer is guilty and try to bring out admission from the delinquent
officer so that the charge against him may be proved. Such an approach would
apparently indicate bias on the part of the enquiry officer and so must be avoided.
When the enquiry officer forgets his role and instead of putting questions with a view to
elucidate answers for proper understanding of the facts before him and begins a
searching cross-examination, the object of which is apparently evidence, he ceases to be
an enquiry officer any more and his action is liable to be attacked successfully by the
other who is prejudiced by the consequently action. It has been noticed time and again
by the Courts that when the officer holding the enquiry takes a different role from that
of a person who is to adjudicate on the dispute impartially and without bias, he becomes
disqualified and it could no longer be said that the result of the enquiry is fair. S.
Krihanan Nair v. Divisional Superintendent, Southern Railway, 1973 SLJ 46: 1973(2)
SLR 353.
One of the principles of natural justice is that no person shall be a judge in his
own cause or the adjudicating authority must be impartial and must act without any
kind of bias. The said rule against bias has its origin from the maxim known as “Debet
esse Judex in Propria Causa”, which is based on the principle that justice not only be
done but should manifestly be seen to be done. This could be possible only when a
judge or an adjudicating authority decides the matter impartially and without carrying
any kind of bias. Bias may be of different kind and form. It may be pecuniary, personal
or there may be bias as to the subject-matter etc. See Financial Commer. (Taxation)
Punjab v. Harbhajan Singh, 1996(9) SCC 281 relied in Amar Nath Chowdhury v.
Braithwaite and Company Ltd., AIR 2002 SC 678: 2002(2) SCC 290: 2002(1) LLJ
1048: 2002(1) SCJ 268.
Cross-examination of defence witnesses by the enquiry officer is in violation of
the principles of natural justice and consequently and enquiry proceedings are vitiated.
Abdul Wajeed v. State of Karnataka, 1981(1) SLR 454.
R. 14] PROCEDURE FOR IMPOSING PENALTIES 355
could not be material. It was held further by Supreme Court that there was no proper
enquiry held by the authorities and on this ground the order of dismissal was quashed.
Hardwari Lal v. State of U.P., AIR 2000 SC 277: 1999(8) SCC 582: 2000(1) LLJ
495:1999(5) SLR 651: 2000 Lab IC 221: 2000(2) LLN 69: 2000(84) FLR 3.
The order of dismissal was held vitiated as the findings have been based on
consideration of statement of the persons examined during the preliminary enquiry but
the power of employer to start a fresh proceeding cannot be taken away. Therefore, the
matter was disposed of with the observation that it will be open to the competent
authority to start a fresh disciplinary proceeding and conclude the same in accordance
with law. Union of India v. Mohammed Ibrahim, 2001(1) LLJ 1642.
The fact that the statements of the witnesses taken at the preliminary stage of
the enquiry were used at the time of the formal enquiry does not vitiate the enquiry if
those statements were made available to the delinquent officer and he was given
opportunity to cross-examine the witnesses in respect of those statements. State of
Mysore v. S.S. Makapur, 1963(2) SCR 943: AIR 1963 SC 375: 1964(1) LLJ 24; State of
U.P. v. Om Prakash Gupta, 1970 SCWR 139: AIR 1970 SC 679: 1969(3) SCC 775:
1969 SLR 890: 1970 Lab IC 658; M.G. Jayaram Naidu v. University of Mysore, 1975
Lab IC 128.
R. 14] PROCEDURE FOR IMPOSING PENALTIES 357
accomplice is legal evidence, but the rule of caution requires that the Tribunal should
not act on that evidence unless it is corroborated or the Tribunal has, after cautioning
itself as to the danger of acting solely on accomplice”s evidence, decided after due
deliberation to accept it. C.J. John v. State of Kerala, 1979(1) SLR 479.
An accomplice is a competent witness — Union of India v. Triloki Nath, 1981
(2) SLR 696
In a departmental enquiry, the question, whether or not any delinquent officer
is co-accused with other does not arise. That would arise in a prosecution laid for
officer under the IPC or Prevention of Corruption Act. The evidence recorded in the
departmental enquiry stricto senso is not evidence as per the provisions of the Evidence
Act. Therefore, the statement of Palairam also formed part of the record which could be
taken into account in adjudging the misconduct against the appellant. Vijay Kumar
Nigam v. State of Madhya Pradesh, AIR 1997 SC 1358: 1996 Supp (8) SCR 544:
1996(11) SCC 599: 1997(1) SLR 17: 1997(1) CLT 263(SC): 1997(2) LLN 585:
1997(77) FLR 7: 1997(91) FJR 84.
127. Additional Evidence under Rule 14(15) — Under Rule 14(15), the
Inquiry Officer is expected to apply his mind to the evidence on record and thereafter
record an order that in his opinion it appeared to be necessary to take additional
evidence. After such an order the Inquiry Officer should allow the Presenting Officer to
produce such additional evidence. In such a case the Government servant is entitled to
an adjournment and to produce new evidence. Union of India v. Inder Nath, 1978(1)
SLR 1 Cal; S.D. Bhardawaj v. Union of India, 1982(2) SLJ 515 HP; H.L. Sethi v.
Municipal Corporation, Simla, 1982(2) SLJ 694 HP: 1983 Lab IC 73.
Where the delinquent applies to the Enquiry Officer to summon certain defence
witnesses (who happen to be serving under the Government in the same district) the
Enquiry Officer should summon them. It is unjustified for him, to leave it to the
delinquent applicant to produce the witnesses on his own responsibility. Refusal
amounts to denial of opportunity to adduce defence evidence. Shiv Dutta v. State of
Punjab, referred to as holding similarly in C. Burrows v. Union of India, 1990(2) SLR
232, 236, 237 para 7 (CAT Jabalpur).
Evidence on behalf of Disciplinary Authority was closed. Report was submitted
by the Inquiring Officer and case was remitted back, time and again. It was held that
additional evidence, cannot be permitted to fill up the gap in the evidence, on behalf of
the Disciplinary Authority, Bansi Ram, Commandant v. H.P. SSB Bn Shamshi, Kulu
District, 1988(4) SLR 55, 64 para 20 HP, (T.R. Handa, J.) (Discretion vested in the
Inquiry Officer was rule 14(5) to examine additional witness, can be exercised only
before the case of the disciplinary authority closed).
128. Witnesses, Examination After Delinquent Examined — Where in a case
the delinquent was examined prior to examination of prosecution witnesses, enquiry
quashed. Holding that this was a negation of the rules. S. Anthonyasani v. Government
of India, 1988(1) SLR 515 (CAT) (SN) (Mad).
Where the Inquiry Officer having received the statement of defence, admitted
fresh defence on behalf of the disciplinary authority, the action of the Inquiry Officer
360 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
could not be said to be procedurally ultra vires as he did have the jurisdiction to
entertain fresh evidence under clause (15). His doing so after having received the
statement of defence, may have been irregular but such irregularity, does not vitiate the
inquiry unless substantial prejudice is established to have been caused to the delinquent
Govt. servant. Fateh Bahadur Singh v. Union of India, 1979(2) SLR 357: 1979 SLJ 607 (All).
enquiry officer cannot say that having regard to the charge against the officer, he would
not hold any oral enquiry. State of Bombay v. Narul Latif Khan, AIR 1966 SCC 269:
1965(3) SCR 135: 1966(2) SCJ 184: 1966(2) LLJ 595.
134. Defence Evidence, Right to Produce, Denied — Right of civil servant to
produce his witnesses is denied. The principal of natural justice is violated. The Court
has to look to what actual prejudice has been caused to a person by supposed denial to
him of a particular right. State of Bombay v. Narul Latif Khan, AIR 1966 SCC 269:
1965(3) SCR 135: 1966(2) SCJ 184: 1966(2) LLJ 595; C.S.Sharma, 1967(II) SCWR
648: 1967(3) SCR 843: AIR 1968 SC 158: 1967 SLR 582; Union of India v. T.R.Varma,
1958 SCR 499: AIR 1957 SC 882; State of M.P. v. Chintaman Sadashiva
Waishampayan, AIR 1961 SC 1623; Mohd. Yusuf Ali v. State of A.P., 1973(1) SLR 650;
Dola Gobinda Das v. Union of India, 1981(2) SLR 185.
In one case the charge-sheet was submitted upon the delinquent in January,
1983, on behalf of bank, list of documents to be relied upon by the bank was submitted
in the months of May and September, 1983, list of witnesses was produced on behalf of
the bank in the month of October, 1983, examination of witnesses on behalf of the bank
started in that very month, the delinquent went on taking time for cross-examination of
some of the witnesses examined on behalf of the bank who were ultimately cross-
examined on 20.3.1984, only after examination of witnesses on behalf of the bank was
completed, list of witnesses was filed by the defence for which the conducting officer
fixed 11.4.1984 and 12.4.1984 as dates for their examination, on 11.4.1984 neither the
defence representative appeared nor a single witness was produced on behalf of the
defence, rather a prayer was made for time upon which the case was adjourned to next
day i.e., 12.4.1984, on the adjourned dated, i.e., 12.4.1984 also neither any defence
representative appeared nor any witness was produced by the defence and the
conducting officer, therefore, had no option but to submit his report as in spite of full
opportunity afforded to the defence no witness was examined. In view of the aforesaid
facts, it was held that reasonable opportunity was afforded to the appellant to adduce
evidence during the course of enquiry. Deokinandan Sharma v. Union of India, 2001(1)
LLJ 1589: 2001(5) SCC 340: 2001(3) SLT 402: AIR 2001 SC 1767: 2001 Lab IC 1704
135. Defence Witnesses: Refusal to Summon and Examine — The Enquiry
Officer should not refuse to summon defence witnesses. He is, however, not bound to
examine all witnesses nominated by the delinquent. Before summoning witnesses, he
has to see that the witnesses are material. If he refuses to summon and examine the
witnesses, the question will arise whether he was justified to refuse to summon and
examine them. The guiding principle is whether the action of the enquiry officer
resulted in denial of a reasonable opportunity to the delinquent to defend himself and
showing cause against the charge and thus prejudice was caused to him whereby
principles of natural justice were violated. Janki Nath Sarangi v. State of Orissa,
1969(II) SCWR 278; State of Punjab v. Dewan Chuni Lal, 1970(1) SCWR 413: 1970
SLR 375: 1970(1) SCC 479: AIR 1970 SC 2086; Harmander Singh v. G.M., Northern
Rly., 1973 SLJ 569: 1973(1) SLR 846; Gajender Singh v. State of Punjab, 1972 SLR
432; Abdul Aziz Khan v. Union of India, 1973 SLJ 597: 1974(1) SLR 67; Inspecting
Assistant Commissioner v. Somendra Kumar, 1976(1) SLR 143: 1975 Lab IC 1647;
R.C. Sharma v. Union of India, AIR 1976 SC 2037: 1976 Supp SCR 580: 1976(3) SCC
362 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
574: 1976 Lab IC 1333: 1976(2) SLR 265: 1976 SLJ 516: ; Girwar v. Union of India,
1982(2) SLJ 56.
136. Defence Witnesses not Examined by Enquiry Officer as they were
Unwilling to Depose for Delinquent Officer — The witnesses whom the delinquent
officer wanted to examine were not examined at the enquiry as it was stated that they
expressed their unwillingness to depose in favour of the delinquent officer. No Enquiry
Officer can compel the presence of unwilling witnesses or to make them speak in
favour of the delinquent officer. J.Selvraj v. Union of India, 1981(3) SLR 20: 1981(2)
SLJ 413: 1982 Lab IC 450; S.D.Sharma v. Trade Fair Authority of India, 1985(1) SLR
670: 1985(1) SLJ 160 Delhi (DB).
137. Defence Witnesses, Cross-examination of, by Enquiry Officer —
Cross-examination of defence witnesses by the enquiry officer was in violation of the
principles of natural justice and consequently the enquiry proceedings were vitiated.
Abdul Wajeed v. State of Karnataka, 1981(1) SLR 454.
138. Defence, When no Evidence to Support Charge — No evidence was
produced in support of charge. Defence of delinquent was taken. Finding could not be
given that the charge had been established. Municipal Committee, Rohtak v. Johri Mal
Mitter, 1970 Lab IC 1488: 1970 SLR 29.
139. Examination of Delinquent, Several Times — Where the delinquent
officer was examined, at the commencement of the enquiry and several times thereafter,
it was held that the enquiry was not fair. Ramshekal Yadav v. Chief Security Officer,
AIR 1967 MP 91.
140. Examination of Delinquent and his Witnesses Before Departmental
Witnesses, Irregular — Examination of delinquent and his witnesses before
departmental witnesses is not only irregular but contrary to procedure of enquiry and
principles of natural justice. Union of India v. Reghubir Saran, 1982 Lab IC 1894.
141. Material on Record: Opportunity to Explain to be Given to
Delinquent — Rules of natural justice require that no material should be relied on
against a Govt. servant without being given an opportunity of explaining them. Union
of India v. T.R. Verma, AIR 1957 SC 882; State of Mysore v. K.Manche Gowda, AIR
1964 SC 506: 1964(4) SCR 540; Ghirrao Lal Srivastava v. State of U.P., 1974 SLJ 694:
1975(1) SLR 323: 1975 Lab IC 1033; Mangal Singh v. Commissioner, 1975(1) SLR
500; Prakash Chandra Suar v. State of Orissa, 1981(3) SLR 323. See also Raj Singh v.
State of Punjab, 1995(8) SLR 557 P&H; Dr Ravi Dutt Sharma v. State of Rajasthan,
1995(8) SLR 774 Raj; Himachal Dalpatram Nimbark v. Deputy Distt. Development
Officer, Amreli, 1997(2) SLR 538 Guj.
Non-supply of copies of relevant documents vitiates the inquiry. N.K.
Varadarajan v. Senior Deputy Director General, 1991(1) SLR CAT (Bangalore).
142. Material Collected and Relied Upon by Enquiry Officer Behind the
Back of Delinquent — If it is established that the material behind the back of the
delinquent officer has been collected during the enquiry and such material has been
relied upon by the enquiry officer, without its having been disclosed to the delinquent
R. 14] PROCEDURE FOR IMPOSING PENALTIES 363
officer, it can be stated that the inquiry proceedings are vitiated. State of M.P. v.
Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623; Rai Bahadur Singh v.
S.D.O., 1975 Lab IC 682.
143. Extraneous Matter, Collection and Placing of it on Record — It is
highly improper for an Enquiry Officer during the conduct of an enquiry to attempt to
collect any materials from outside sources and not make that information, so collected,
available to the delinquent officer and further make use of the same in enquiry
proceedings. State of Mysore v. S.S. Makapur, 1963(2) SCR 943: AIR 1963 SC 375;
State of Assam v. Mahendra Kumar Das, AIR 1970 SC 1255: 1971(1) SCR 87: 1970
SCC 709: 1970 Lab IC 1056: 1970 SLR 444; Amar Nath v. The Commissioner, 1969
Cur LJ 484; Raj Paul v. Administrator, Municipal Committee, 1970 Cur LJ 406: 1970
SLR 494; Rai Bahadur Singh v. S.D.O., 1975 Lab IC 682.
144. Enquiry Officer Relied Upon Material not Placed on Record During
Enquiry — Where the Enquiry Officer relied upon material which was not placed on
record during enquiry, it was held that the delinquent officer had not been given
reasonable opportunity of defending himself in the case and the order of dismissal was
set aside. Prakash Chandra Suar v. State of Orissa, 1981(3) SLR 323 (FB).
145. Statement not Recorded during Enquiry not to be Relied Upon —
Enquiry officer should not rely on the statement of a person whose statement had not
been recorded during the enquiry. Ram Shakal Yadav v. Chief Security Officer, AIR
1967 MP 91.
Sub-rule (18):
146. Failure to Generally Question Delinquent Officer Under Sub-rule (18)
— Failure to comply with the requirement of sub-rule (18) does not vitiate the enquiry
unless the delinquent officer is able to establish prejudice. Rule 8(19) of All India
Service (Discipline and Appeal) Rules, 1969 and sub-rule (18) of Rule 14 of CCS
(CCA) Rules are almost similar. The decision therefore applies to sub-rule (18). Sunil
Kumar Banerjee v. State of West Bengal, 1980(2) SLR 147 (SC): AIR 1980 SC 1170:
1980(3) SCR 179: 1980(3) SCC 304: 1980 Lab IC 654: 1980(2) SCJ 327: 1980(40)
FLR 434.
Delinquent raised a question about procedural error in the inquiry by Enquiry
Officer, but did not take a particular stand. It was held that there was no illegality.
Secretary, Central Board of Excise and Customs, New Delhi v. K.S. Mahalingam,
1988(3) SLR 667 Mad (DB).
Question should refer to the evidence. Findings should not be based on the
answers. Satyapal Arora v. Director of Postal Services, 1990(2) SLJ 700 (CAT,
Jabalpur).
Extensive examination of the delinquent by the Enquiry Officer is deprecated.
Ram Shakial Yadav v. Chief Security Officer, AIR 1967 MP 91. The questions should
be inquisitorial. S.Krishnann Nair v. Divisional Superintendent, Southern Railway,
1973 Lab IC 591 (Ker): 1973 SLJ 46: 1973(2) SLR 353; Satyapal Arora v. Director of
Postal Services, 1990(2) SLJ 100 (CAT, Jabalpur).
364 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
Sub-rule (19)
147. Supply of Copy of Written Brief to Government Servant, Necessary —
Rule 14(19) has left with the Enquiry Officer alternative course to be followed after the
closing of evidence for hearing the parties, that is, he may either hear the oral
arguments of Presiding Officer and the Government servant or alternatively permit
them to file written briefs of their respective cases if they would so desire. There is no
provision in the rule for supplying a copy of the written brief that may be filed by the
Presenting Officer to the Government servant. The question is whether non-supply of
copy of the written brief to the Government servant contravenes the rules of natural
justice. The question was decided by the Calcutta High Court in Collector of Customs v.
Mohd. Habibul Haque, 1973(1) SLR 321, and it was held that the requirements of rules
and principles of natural justice demand that the respondent should be served with a
copy of the written brief filed by the Presenting Officer even though service of such a
copy is not expressly provided in the rule. Failure to supply such a copy results in
denial of reasonable opportunity to the respondent to defend himself and thus renders
the entire disciplinary proceedings, invalid.
Sub-rule (20)
148. Ex parte Enquiry on Refusal of Service — (i) All that is required in
departmental enquiry is that a reasonable opportunity should be given and trying to
serve the Petitioner by Registered A.D. Post is more than reasonable. If the petitioner
chose to refuse service he must pay for the consequences. Ex parte enquiry valid.
Jadish Sekhri v. Union of India, 1970 SLR 571 Delhi; Union of India v. H.C. Sarin,
1967 DLT 567. See also Sri Ram Verma v. District Assistant Registrar, 1986(3) SLR 23
(DB). Termination of employee on the basis of enquiry in which the employee himself
chose not to participate was held valid and not assailable. Ranjan Kumar Mitra v.
Andrew Yule & Co. Ltd., 1997(10) SCC 386.
The post returned with endorsement “refused”. Held that it should be proved by
leading evidence as mere avoidance of service not sufficient to proceed ex-parte
enquiry. It should be proved that the avoidance was made deliberately and knowingly.
Ramesh Chander Tyagi v. Union of India, 1994(2) SCC 416: 1994(1) SLR 838:
1994(68) FLR 688: 1994(2) LLJ 192: 1994(27) ATC 112: 1994(2) LLN 748: 1996(1)
SLR 703.
149. Delinquent Officer did not Participate in Proceedings — Where the
delinquent officer at no time made any effort to participate in the proceedings, ex parte
proceedings are not vitiated. Sualal Yadav v. State of Rajasthan, 1977(1) SLR 681:
1977 SLJ 175.
Where the delinquent refused to participate in the disciplinary proceedings
without any valid reason, it was held that such employee cannot be permitted to
complain later on that he had been denied the reasonable opportunity of defending
R. 14] PROCEDURE FOR IMPOSING PENALTIES 365
himself and no violation of principles of natural justice can be alleged. Bank of India v.
Apurba Kumar Saha, 1994(2) SCC 615: 1994(1) SLR 260: 1994(3) SLJ 32: 1995(1) BC
13: 1994(2) LLN 56: 1995(2) LLJ 18.
Sub-rule (21)(a):
153. Disciplinary Proceedings Initiated by Authority Competent Only to
Inflict Minor Penalties — From sub-rule (21)(a) it is clear that an authority competent
to impose any of the minor penalties can himself inquire into the articles of charge or
cause it to be inquired into any other person appointed by him and in that case the order
awarding any of the major penalties, made by the authority competent to impose such
major penalty will not be deemed bad in law merely on the ground that the disciplinary
proceedings had been initiated by an authority competent only to inflict any of the
minor penalties. Director, Postal Service v. Oudh Behari Singh, 1980 SLJ 142. See also
State of Punjab v. Choudhary Manphul Singh, 1986(1) SLR 484 P&H.
366 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
Sub-rule (22):
154. Enquiry de nova on Change of Enquiry Officer — (I) A civil servant
cannot insist for de nova enquiry when there has been change of personnel of enquiry
officer because the findings of enquiry officer do not have a conclusive or binding
effect on the punishing authority. S. Harjit Singh v. I.G. Police, AIR 1963 Pun 90;
Deputy Inspector-General of Police v. P. Amualanathan, AIR 1966 Mad 203 (FB).
(ii) The successor enquiry officer can submit the enquiry report on the basis of
materials collected by his predecessors. Bauribandhu Misra v. I.G. Police, AIR 1970
Ori 213. See also Amal Kumar Roy v. Union of India, 1988(1) SLR 330 (CAT Cal); M.
Kolanadni Gounder v. Divisional Engineer, T.N.E.B., Thuraiyur, 1997(1) SLR 467
Mad.
155. Enquiry Committee: Change in Personnel — A change in personnel”s
of the Inquiry Committee after the proceedings are begun and some evidence recorded
cannot make any difference to the case of the civil servant. Report of Enquiry
Committee not vitiated. No violation of any principles of natural justice. General
Manager, E.Rly v. Jawala Prasad Singh, AIR 1970 SC 1095: 1970(3) SCR 271:
1970(1) SCC 103: 1970 SLR 25: 1970 Lab IC 866: 1970(2) LLJ 279: 1970(20) FLR 84:
1971(1) SCJ 439.
Sub-rule (23):
156. Proof Required in Departmental Proceedings — (I) The rule followed
in criminal trials that an offence is not established unless proved by evidence beyond
reasonable doubt to the satisfaction of the Court, is not applicable to departmental
proceedings. State of A.P. v. S.Sree Rama Rao, AIR 1963 SC 1723: 1964(3) SCR 25:
1964(2) SCJ 300: 1966(13) FLR 104: 1964(1) LLJ 1; Sanat Kr. Banerjee v. Collector,
1970 Lab IC 1641 (Cal); Sat Prakash Manchanda v. Union of India, 1975 SLJ 101;
K.L. Shinde v. State of Mysore, AIR 1976 SC 1080: 1976(3) SCR 913: 1976(3) SCC 76:
1976 SLJ 468: 1976(2) SLR 102 & 260: 1976 Lab IC 699: 1976(1) LLJ 465.
(ii) The standard of proof required is that of preponderance of probability and
is not proof beyond reasonable doubt. Union of India v. Sardar Bahadur, 1971(II)
SCWR 712: 1972 SLR 355; Standard of proof in a criminal case and departmental
enquiry is different. Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh, 1994 Supp (3)
SCC 628: 1994(5) SLR 534: 1994(28) ATC 594: 1994(69) FLR 1078: 1995(2) LLJ 633:
1996(2) LLN 451. The inquiry proceedings should not be examined by the court as if it
was hearing an appeal in criminal case. Union of India v. A. Nagamalleshwar Rao, AIR
1998 SC 111: 1998(1) SCC 700: 1998(78) FLR 68: 1998(1) SLR 18: 1998 Lab IC 389:
1998(1) LLN 361. See also Union of India v. B.K. Srivastava, 1998(6) SCC 340: AIR
1998 SC 300: 1997(77) FLR 786: 1998(1) LLJ 431: 1998(1) LLN 340.
(iii) Though the proof beyond reasonable doubt should not be insisted upon still
the proof should be capable of scrutiny and should stand test of reasonableness
consistent with human conduct and probabilities. The findings should be supported by
legal evidence. K. Sundora Rajan v. D.I.G. Police, Tiruchirapalli, 1973 SLJ 100: 1972
SLR 723.
R. 14] PROCEDURE FOR IMPOSING PENALTIES 367
157. Findings of Enquiry Officer should be Clear and Definite — (I) The
mind of the Enquiry Officer and the Disciplinary Authority should be applied with
scrupulous regard to the material on the record and that it should be followed by a clear
and definite finding. A weak and inconclusive finding cannot serve in law as the basis
for taking action against the delinquent official. Gian Singh v. State of H.P., 1974(2)
SLR 226: 1975 Lab IC 73.
(ii) Enquiry Officer recorded a hesitating finding supporting the defence plea.
Held, a departmental action is not a criminal charge and therefore courts have taken the
view that doctrine of benefit of doubt has no application. On the evidence, as a fact
conclusion on the point should have been reached. Paramananda Mishra v.
Comptroller and Auditor General of India, 1974(2) SLR 487: 1975 Lab IC 838. See
also Kalidas Biswas v. Union of India, 1990(6) SLR 413 (CAT Cal); Kapileshwar
Paswan v. G.M., North Eastern Railway, 1989(5) SLR 799 (CAT Patna).
Where there was no evidence to support the charges the penalty imposed was
quashed. Prakash Chandra Suar v. State of Orissa, 1981(3) SLR 323.
made on the basis of the material to assist the Inquiry Officer to come to his
conclusions. In case his conclusions are kept away from the delinquent officer and the
Inquiry Officer submits his conclusions with or without recommendation as to
punishment, the delinquent is precluded from knowing the contents thereof although
such material is used against him by the disciplinary authority. The report is an adverse
material if the Inquiry Officer records a finding of guilt and proposes a punishment so
far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being
deprived of knowledge of the material against him though the same is made available to
the punishing authority in the matter of reaching his conclusion, rules of natural justice
would be affected. Prof. Wade has pointed out:
“The concept of natural justice has existed for many centuries and
it has crystallised into two rules: that no man should be judge in
his own cause; and that no man should suffer without first being
given a fair hearing. They (the Courts) have been developing and
extending the principles of natural justice so as to build up a kind
of code of fair administrative procedure to be obeyed by
authorities of all kinds. They have done this once again, by
assuming that Parliament always intends powers to be exercised
fairly.”
Deletion of the second opportunity from the scheme of Art. 311(2) of the
Constitution has nothing to do with providing of a copy of the report to the delinquent
in the matter of making his representation. Even though the second stage of the inquiry
in Art. 311(2) has been abolished by amendment, the delinquent is still entitled to
represent against the conclusion of the inquiry Officer holding that the charges or some
of the charges are established and holding the delinquent guilty of such charges. For
doing away with the effect of the enquiry report or to meet the recommendations of the
Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the
report becomes necessary and to have the proceeding completed by using some material
behind the back of the delinquent is a position not countenanced by fair procedure.
While by law application of natural justice could be totally ruled out or truncated,
nothing has been done here which could be taken as keeping natural justice out of the
proceedings and the series of pronouncements of this Court making rules of natural
justice applicable to such an inquiry are not affected by the 42nd amendment. It was
therefore held that supply of a copy of the inquiry report along with recommendations,
if any, in the matter of proposed punishment to be inflicted would be within the rules of
natural justice and the delinquent would, therefore, be entitled to the supply of a copy
thereof. The Forty-Second Amendment has not brought about any change in this
position.” Union of India v. Ramzan Khan (Mohd), 1990 Supp (3) SCR 248: AIR 1991
SC 471: 1991(1) SCC 588: 1990(4) JT 456: 1991(78) FJR 207: 1991(1) ATR 120:
1991(16) ATC 505: 1991(1) LLN 380: 1990(61) FLR 736: 1991(1) SLR 159: 1991 Lab
IC 308: 1991(1) LLJ 29: 1991(1) SLJ 196.
Another argument advanced on the basis of Art. 14 of the Constitution, namely,
that in one set of cases arising out of disciplinary proceedings furnishing of the copy of
the inquiry report would be insisted upon while in the other it would not be, was held to
have no foundation inasmuch as where the disciplinary authority is the Inquiry Officer
370 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
there is no report. He becomes the first assessing authority to consider the evidence
directly for finding out whether the delinquent is guilty and liable to be punished. Even
otherwise, the inquiries which are directly handled by the disciplinary authority and
those which are allowed to be handled by the Inquiry Officer can easily be classified
into two separate groups - one, where there is no inquiry report on account of the fact
that the disciplinary authority is the Inquiry Officer and inquiries where there is a report
on account of the fact that an officer other than the disciplinary authority has been
constituted as the Inquiry Officer. That itself would be a reasonable classification
keeping away the application of Art. 14 of the Constitution. Union of India v. Ramzan
Khan (Mohd) (supra).
Thereafter this question was again considered by a Constitution Bench of the
Supreme Court consisting of M. N. Venkatachaliah, C.J.I., P.B. Sawant, K.
Ramaswamy, S. Mohan and B. P. Jeevan Reddy, JJ. in Managing Director, ECIL,
Hyderabad, v. B. Karunakar, 1993 Supp(2) SCR 576: 1993(4) SCC 727: 1994(6) JT 1:
AIR 1994 SC 1074: 1993(3) SLJ 193: 1993(25) ATC 704: 1994(84) FJR 210: 1993(5)
SLR 532: 1993(67) FLR 1230: 1994(1) LLJ 162: 1994 Lab IC 762: 1994(2) LLN 9 The
majority judgement was delivered by Sawant J. for M. N. Venkatachaliah, C. J. I., for
himself, S. Mohan and B. P. Jeevan Reddy, JJ. His lordship formulated the following
questions for consideration by the Constitution Bench:
“The basic question of law which arises in these matters is whether the report
of the Inquiry Officer/authority who/which is appointed by the disciplinary authority to
hold an inquiry into the charges against the delinquent employee is required to be
furnished to the employee to enable him to make proper representation to the
disciplinary authority before such authority arrives at its own finding with regard to the
guilt or otherwise of the employee and the punishment, if any, to be awarded to him.
This question in turn gives rise to the following incidental questions:
(i) Whether the report should be furnished to the employee even
when the statutory rules laying down the procedure for holding the
disciplinary inquiry are silent on the subject or are against it?
(ii) Whether the report of the Inquiry Officer is required to be
furnished to the delinquent employee even when the punishment
imposed is other than the major punishment of dismissal, removal
or reduction in rank?
(iii) Whether the obligation to furnish the report is only when the
employee asks for the same or whether it exists even otherwise?
(iv) Whether the law laid down in Mohd. Ramzan Khan”s case (AIR
1991 SC 471) (supra) will apply to all establishments-
Government and non-Government, public and private sector
undertakings?
(v) What is the effect of the non-furnishing of the report on the order
of punishment and what relief should be granted to the employee
in such cases?
R. 14] PROCEDURE FOR IMPOSING PENALTIES 371
(vi) From what date the law requiring furnishing of the report should
come into operation?
cases the non-furnishing of the report may have prejudiced him gravely while in other
cases it may have made no difference to the ultimate punishment awarded to him.
Hence to direct reinstatement of the employee with back-wages in all cases is to reduce
the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the
principles of natural justice have been evolved to uphold the rule of law and to assist
the individual to vindicate his just rights. They are not incantations to be invoked nor
rites to be performed on all and sundry occasions. Whether in fact, prejudice has been
caused to the employee or not on account of the denial to him of the report, has to be
considered on the facts and circumstances of each case. Where, therefore, even after the
furnishing of the report, no different consequence would have followed, it would be a
perversion of justice to permit the employee to resume duty and to get all the
consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to
stretching the concept of justice to illogical and exasperating limits. It amounts to a
“unnatural expansion of natural justice” which in itself is antithetical to justice. ….
Hence, in all cases where the Inquiry Officer”s report is not furnished to the delinquent
employee in the disciplinary proceedings, the courts and Tribunals should cause the
copy of the report to be furnished to the aggrieved employee if he has not already
secured it before coming to the Court Tribunal, and give the employee an opportunity to
show how his or her case was prejudiced because of the non-supply of the report. If
after hearing the parties, the Court, Tribunal comes to the conclusion that the non-
supply of the report would have made no difference to the ultimate findings and the
punishment given, the Court/Tribunal should not interfere with the order of punishment.
The Court/Tribunal should not mechanically set aside the order of punishment on the
ground that the report was not furnished as is regrettably being done at present. The
courts should avoid resorting to short-cuts. Since it is the Courts/ Tribunals which will
apply their judicial mind to the question and give their reasons for setting aside or not
setting aside the order of punishment, (and not any internal appellate or revisional
authority), there would be neither a breach of the principles of natural justice nor a
denial of the reasonable opportunity. It is only if the Courts/ Tribunals find that the
furnishing of the report would have made a difference to the result in the case that
should set aside the order of punishment. Where after following the above procedure
the Courts/Tribunals sets aside the order of punishment, the proper relief that should be
granted is to direct reinstatement of the employee with liberty to the authority,
management to proceed with the inquiry, by placing the employee under suspension and
continuing the inquiry from the stage of furnishing him with the report. The question
whether the employee would be entitled to the back-wages and other benefits from the
date of his dismissal to the date of his reinstatement if ultimately ordered should
invariably be left to be decided by the authority concerned according to law, after the
culmination of the proceedings and depending on the final outcome. If the employee
succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at
liberty to decide according to law how it will treat the period from the date of dismissal
till the reinstatement and to what benefits, if any and the extent of the benefits, he will
be entitled. The reinstatement made as a result of the setting aside of the inquiry for
failure to furnish the report should be treated as a reinstatement for the purpose of
holding the fresh inquiry from the stage of furnishing the report and no more, where
such fresh inquiry is held. That will also be the correct position in law.
374 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 14
(vi) & (vii) It is for the first time in Mohd. Ramzan Khan”s case (supra) that
this court laid down the law. That decision made the law, laid down there prospective in
operation, i.e., applicable to the orders of punishment passed after 20th November,
1990. The law laid down was not applicable to the orders of punishment passed before
that date notwithstanding the fact that the proceedings arising out of the same were
pending in courts after that date. The said proceedings had to be decided according to
the law prevalent prior to the said date which did not require the authority to supply a
copy of the Inquiry Officer”s report to the employee. The only exception to this was
where the service rules with regard to the disciplinary proceedings themselves made it
obligatory to supply a copy of the report to the employee.
The above answers to seven questions extracted above cover the all aspects of
supply and non supply of enquiry report. Accordingly an order passed in a disciplinary
proceeding cannot ipso facto be quashed merely because a copy of the enquiry report
has not been furnished to the delinquent officer, but he is obliged to show that by non-
furnishing of such a report he has been prejudiced, would apply even to cases where
there is requirement of furnishing copy of enquiry report under the statutory provisions
and/or services rules. State of Uttar Pradesh v. Harendra Arora, 2001(3) SCR 375: AIR
2001 SC 2319: 2001(6) SCC 392: 2001(4) SLR 558: 2001 Lab IC 1805: 2002(3) LLJ 1124.
1 Sub-rules(1-A), (1-B) and (2) substituted by Rules (2) and (2-A) vide Notification
No.11012/20/1998 Estt. (A), dated 21.08.2000 and published in the Gazette of
India by GSR No.337 dated 02.09.2000.
376 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 15
during the inquiry, is of the opinion that any of the penalties specified in
clauses (v) to (ix) of Rule 11 should be imposed on the Government
servant, it shall make an order imposing such penalty and it shall not be
necessary to give the Government servant any opportunity of making
representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the
Commission, the record of the inquiry shall be forwarded by the
disciplinary authority to the Commission for its advice and such advice
shall be taken into consideration before making an order imposing any
such penalty on the Government servant.
COMMENTARY
SYNOPSIS
Sub-rule (1)
1. Enquiry officer and disciplinary authority: Generally .................................................... 377
2. Power to remit case for further enquiry. ......................................................................... 377
3. De nova enquiry ............................................................................................................. 378
Sub-rules (2), (3) and (4)
4. Disagreement with Enquiry Officer ............................................................................... 379
5. Disciplinary authority to give its reasons of disagreement ............................................. 379
6. Natural Justice ................................................................................................................ 380
7. Disagreement with Enquiry Officer or Committee, when High Court to interfere ......... 381
8. Bias of punishing authority ............................................................................................ 382
9. Enquiry Officer acting as Disciplinary Authority........................................................... 382
10. Disciplinary Authority is not bound by findings of Enquiry Officer .............................. 383
11. Disciplinary Authority to apply mind............................................................................. 384
12. Dismissal in default ........................................................................................................ 385
13. Disciplinary Authority Whether to give reasons for accepting the findings of enquiry
officer ............................................................................................................................. 385
14. Quasi-judicial authorities should indicate reasons.......................................................... 386
15. Disciplinary Authority: Power to interfere with other enquiries .................................... 386
16. Order of disciplinary authority to show what charges had been established .................. 387
17. Order should be a speaking order ................................................................................... 387
18. Extraneous matters not be considered ............................................................................ 388
19. Suspicion, no substitute for proof................................................................................... 389
20. High Court not to review materials in a writ, if enquiry properly held .......................... 389
21. High Court whether to appraise evidence in writ ........................................................... 390
R. 15] PROCEDURE FOR IMPOSING PENALTIES 377
Sub-rule (1)
1. Enquiry officer and disciplinary authority: Generally — When the
inquiry is conducted by the inquiry officer his report is not final or conclusive and the
disciplinary proceedings do not stand concluded. The disciplinary proceedings stand
concluded with decision of the disciplinary authority. It is the disciplinary authority
which can impose the penalty and not the inquiry officer. Where the disciplinary
authority itself holds an inquiry an opportunity of hearing has to be granted by him.
When the disciplinary authority differs with the view of the inquiry officer and
proposes to come to a different conclusion, there is no reason as to why an opportunity
of hearing should not be granted. In any such situation the charged officer must have an
opportunity to represent before the Disciplinary Authority before final findings on the
charges are recorded and punishment imposed. Punjab National Bank v. Kunj Behari
Misra, 1998(7) SCC 84: AIR 1998 SC 2713: 1998(5) JT 548: 1998(5) SLR 715:
1999(1) SLJ 271: 1998(80) FLR 341: 1998(2) KLT 66(SN): 1998(2) LLJ 809: 1998 Lab
IC 3012: 1998(93) FJR 588.
2. Power to Remit Case for Further Enquiry — In case of disagreement, the
Disciplinary Authority should record reasons for such disagreement and then to record
his own findings if the evidence available on record be sufficient for such exercise or
else to remit the case to the Enquiry Officer for further enquiry and report. Bank of
India v. Degala Suryanarayana, AIR 1999 SC 2407: 1999(5) SCC 762: 1999(4) JT 489:
378 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 15
1999(4) SLR 292: 1999(2) LLJ 682: 1999 Lab IC 2819: 1999(3) LLN 532: 1999(82)
FLR 1004: 1999(95) FJR 477: 1999(3) SCJ 168.
When the inquiring authority has submitted his report, it is open to the
disciplinary authority to refuse or accept it and to send back the matter to the Enquiry
Officer making further inquiry. Keshab Chandra Sarama v. State of Assam, AIR 1962
Assam 17. See also Union of India v. Mohd. Ramzan Khan, 1990 Supp(3) SCR 248:
1991(1) SCC 588: AIR 1991 SC 471: 1990(4) JT 456: 1991 (78) FJR 207: 1991(1) ATR
120: 1991(16) ATC 505: 1990(61) FLR 736: 1991(1) SLR 159: 1991(1) SLJ 106: 1991
Lab IC 308.
This power should be invoked only if necessary for ends of justice and must be
exercised with care. Such an order would be illegal if it is passed not on any error on
the part of the Enquiry Officer or defect in the procedure adopted by it but merely to
enable the presenting officer to supply the deficiencies to prove the charges and to do
what he had failed to do.
Disciplinary Authority can order only a limited further inquiry. M.S. Halwe v.
Union of India, 1987(3) SLJ 687.
The Railway Servants (Discipline and Appeal) Rules, 1968, Rule 10, [which
corresponds to Rule 15, CCS (CCA) Rules] does not empower the disciplinary
authority, who disagrees with the finding of the inquiring authority to remit the case for
fresh inquiry. H.D. Chothani v. Additional Divisional Railway Manager, Central
Railway, 1990(3) SLJ 288 (CAT, New Bombay).
Rule 10(2), Railway Servants (Discipline and Appeal) Rules, 1968, reads
as under:—
“10.(2) The disciplinary authority, if it is not itself the enquiring authority,
may, for reasons to be recorded in writing, remit the case to the enquiry
authority for further inquiry and report and the enquiry authority shall
thereupon proceed to hold the further inquiry according to the provisions of
Rule 9 as far as may be.”.
The rule does not envisage a de novo inquiry by appointing another Inquiry
Officer. Ordering another Enquiring Officer after the inquiry authority has submitted
his report is also illegal where the second inquiry is itself illegal for the reason
mentioned above and the order passed as a result of such inquiry also cannot stand and
has to be quashed. L.David v. Union of India, 1990(14) ATC 590 Mad.
3. De nova Enquiry — There is no provision in the rules to order a de nova
inquiry after wiping out the enquiry already conducted. The Disciplinary Authority
however can remit the case to the inquiry authority for further inquiry. K.R. Deb v.
Collector of Central Excise, AIR 1971 SC 1447: 1971 Supp SCR 375: 1971(2) SCC
102: 1971(1) SLR 29: 1971 Lab IC 945: 1971(1) LLJ 427; Kesevan Nambodiri v. State
of Kerala, 1982(2) SLJ 387, See also Som Nath Sharma v. Union of India, 1994(7) SLR
503 (CAT, Chandigarh).
Disciplinary proceedings, were initiated. Submission of inquiry report after
completion of the enquiry took place - Inquiry report was rejected in toto by the
R. 15] PROCEDURE FOR IMPOSING PENALTIES 379
disciplinary authority and appointment of another inquiry officer was ordered. Action
of disciplinary authority was held to be bad in law. V. Ramachandran v. Union of India,
1992(1) SLR 57 (CAT, Madras).
If in a particular case where there has been no proper enquiry because of some
serious defect having crept into the inquiry or some important witnesses were not
available at the time of the inquiry or were not examined, the Disciplinary Authority
may ask the Inquiry Officer to record further evidence but that provision would not
enable the Disciplinary Authority to set aside the previous enquiries on the ground that
the report of the Enquiry Officer does not appeal to the Disciplinary Authority. In this
case the basis upon which the Disciplinary Authority set aside the enquiry is that the
procedure adopted by the Enquiry Officer was contrary to the relevant rules and affects
the rights of the parties and not that the report does not appeal to him. When important
evidence, either to be relied upon by the department or by the delinquent official, is
shut out, this would not result in any advancement of any justice but on the other hand
result in a miscarriage thereof. Therefore, the Disciplinary Authority may record his
findings on the report and pass an appropriate order including ordering a de nova
enquiry in a case of such nature. Union of India v. P. Thayagarajan, AIR 1999 SC 449:
1999(1) SCC 733: 1998(5) SLR 734: 1999(2) SLJ 72: 1999(1) LLJ 507: 1999 LIC 169:
1999(81) FLR 76: 1999(94) FJR 347.
Disciplinary authority had become functus officio. Balloo Singh v. Union of India,
1989(7) SLR 261 (CAT, Jabalpur).
Remitting back the inquiry proceeding time and again by the Disciplinary
Authority, after the close of evidence and submission of report was done, without
recording any reason is improper. Statements of witnesses were not included in the list
recorded after the remittance. Enquiry, it was held that it could be remitted only for a
limited purpose, for removing some ambiguity in the evidence or to remove some
procedural defects. Order remitting back the enquiry proceedings was void. All further
proceedings (including the order of dismissal) were also pronounced to be illegal. Bansi
Ram, Commandant v. H.P. SSB Bn Shamshi, Kulu District, 1988(4) SLR 55.
Only in those cases where the Disciplinary Authority considers it necessary to
direct fresh or further enquiry or disagrees with the findings of the Enquiry Officer, it
has to record the reasons for its such directions, but there is no such obligation if it
agrees with the findings of the Enquiry Officer. State Bank of Bikaner and Jaipur v.
Prabhu Dayal Grover, AIR 1996 SC 320: 1995 Supp (3) SCR 785: 1995(6) SCC 279:
1995(7) JT 207: 1996 Lab IC 210: 1996(72) FLR 1: 1996(1) LLJ 288: 1996(1) SLJ 145.
In one case that disciplinary Authority without supplying inquiry report gave
show cause notice proposing to dismiss the employee on the charges from which
employee was exonerated by inquiry officer. Held that it prima facie looks unfair and
matter remitted to disciplinary authority to communicate reasons for his disagreement
with the Enquiry Officers findings to the employee, hear him and pass orders according
to law. R.R. Gabhane v. State of Madhya Pradesh, 1998(8) SCC 549: 1999(3) LLJ 324.
6. Natural Justice — Though Disciplinary Authority is entitled to differ with
Inquiry Officer. It must give opportunity of hearing to the employee, failing which
decision of Disciplinary authority being in violation of principles of natural justice is
illegal. Member Secretary, Punishing Authority, APSEB v. G. Amruthaiah, 2002(1) SLR
575 AP (DB).
A delinquent employee has the right of hearing not only during the enquiry
proceedings conducted by the Enquiry Officer into the charges levelled against him but
also at the stage at which those findings are considered by the Disciplinary Authority
and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does
not agree with the findings recorded by the Enquiry Officer. If the findings recorded by
the Enquiry Officer are in favour of the delinquent and it has been held that the charges
are not proved, it is all the more necessary to give an opportunity of hearing to the
delinquent employee before reversing those findings. The formation of opinion should
be tentative and not final. It is at this stage that the delinquent employee should be
given an opportunity of hearing after he is informed of the reasons on the basis of
which the Disciplinary Authority has proposed to disagree with the findings of the
Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the
Constitution as it provides that a person shall not be dismissed or removed or reduced
in rank except after an enquiry in which he has been informed of the charges against
him and given a reasonable opportunity of being heard in respect of those charges. So
long as a final decision is not taken in the matter, the enquiry shall be deemed to be
pending. Mere submission of findings to the Disciplinary Authority does not bring
R. 15] PROCEDURE FOR IMPOSING PENALTIES 381
about the closure of the enquiry proceedings. The enquiry proceedings would come to
an end only when the findings have been considered by the Disciplinary Authority and
the charges are either held to be not proved or found to be proved and in that event
punishment is inflicted upon the delinquent. That being so, the “right to be heard”
would be available to the delinquent up to the final stage. This right being a
constitutional right of the employee cannot be taken away by any legislative enactment
or Service Rule including Rules made under Article 309 of the Constitution. Yoginath
D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83)
FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39.
Opportunity of hearing by the disciplinary authority. The disciplinary authority
can disagree with the findings arrived at by the enquiring officer and act upon his own
conclusion, but the only requirement is that the said disciplinary authority must record
reasons for his disagreement with the findings of the enquiry officer. If the disciplinary
authority gives reasons for disagreeing with the findings of enquiring officer then the
Court cannot interfere with those findings unless it comes to the conclusion that no
reasonable man can come to the said finding. Held that there is no force in the
submission of the learned counsel appearing for the delinquent government servant that
before the disciplinary authsority proceeds to award punishment, the delinquent
government servant should have been afforded a further opportunity of hearing. Held
further that charges having been framed and the delinquent government servant having
filed his show cause to the set of charges, the regular enquiry having been held and the
enquiring officer having recorded his findings and thereafter the disciplinary authority
having disagreed with the findings by recording the reasons therefore and ultimately
awarding minor punishment of stoppage of one increment without cumulative effect,
there is no procedural irregularity therein nor can it be said that there has been any
violation of principle of natural justice. State of Rajasthan v. M.C. Saxena, 1998(3)
SCC 385: AIR 1998 SC 1150: 1998(2) JT 103: 1998(1) SLR 787: 1998(1) LLJ 1244:
1998(79) FLR 140: 1998(3) SLJ 10: 1998 Lab IC 1038: 1998(93) FJR 582: 2000(1)
LLN 35.
7. Disagreement with Enquiry Officer or Committee, When High Court to
Interfere — It was open to the Disciplinary Authority to accept the evidence of the
witnesses and he was not bound by the conclusions reached by Enquiry Committee.
This is not a case where it can be said that the finding of Disciplinary Authority is not
supported by any evidence nor it can be said that no reasonable person could have
reached at such a finding. High Court in the exercise of its certiorari jurisdiction could
not have interfered with conclusions reached by Disciplinary Authority in such a case.
Railway Board v. Niranjan Singh, AIR 1969 SC 966: 1969(3) SCR 548: 1969(1) SCC
502: 1969(2) SCJ 573: 1969(36) FJR 34: 1969 Lab IC 1368: 1969(18) FLR 300:
1969(2) LLJ 743; Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269.
If the Disciplinary Authority does not agree with the finding of the Enquiry
Officer, the dissent must be communicated to the employee. Y.K. Verma v. Union of
India, 1988(1) SLR 15, 28 para 40 (CAT, Jabalpur).
Judicial Review, not being an appeal from a decision, but a review of the
manner in which the decision was arrived at, the Court while exercising the power of
382 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 15
Judicial Review must remain conscious of the fact that if the decision has been arrived
at by the Administrative Authority after following the principles established by law and
the rules of natural justice and the individual has received a fair treatment to meet the
case against him, the Court cannot substitute its judgment for that of the Administrative
Authority on a matter which fell squarely within the sphere of jurisdiction of that
authority. Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625:
1999(1) SCC 759: 1999(1) LLJ 962: 1999(1) SCJ 265: 1999(1) KLT 38(SN): 1999 LIC
918: 1999(1) LLN 1067: 1999(81) FLR 462: 2000(1) SLJ 65.
8. Bias of Punishing Authority — The proceedings stand vitiated where the
punishing authority has already made up his mind. Rajendra Narain Tewari v. Haryana
Government, 1973(2) SLR 331: 1973 SLJ 978. He, who hears and decides questions
judicially, must be an impartial person free from any bias against the party before him
is salient principle of natural justice and this principle also applies to quasi judicial
authorities. Madan Gopal Gupta (Dr) v. Agra University, 1975 Lab IC 3. The fact that
the Chief Engineer had himself seen the bearings being recovered from the possession
of the petitioner whose positive case is that the bearings were planted by A, was bound
to be affected by the fact that the competent authority had seen the bearing being
recovered. In a sense, the decision of the competent authority was really an empty
formality, and it would, therefore, not be possible to sustain the dismissal order passed
by him against the petitioner. D.J. Warkari v. K.V. Karanjikar, 1980(1) SLR 839.
The allegation must be specific and the employee must be given chance to give
reply to the said allegations in specific. After consideration of the show-cause along
with the charge-sheet and the reply of the employee in respect of the charges levelled
against him the authority is to decide whether there will be an enquiry on the basis of
the charge-sheet or not. If on very issuance of the charge-sheet before receipt of reply
the authority decide that an enquiry would be held then it smacks of bias. The authority
appears to be biased without waiting for the reply to the charge-sheet decides that any
enquiry would be held against the employee concerned. In fact, charge-sheet/show
cause or its reply is a matter of serious consideration of the authority inasmuch as if the
authority is satisfied with the reply of the employee to the charge-sheet/show cause, the
authority may not or need not have to proceed with any enquiry and if the authority is
not satisfied then and then only there would be enquiry. If in the charge-sheet itself it is
stated that an enquiry would be held on the basis of the charges and the employee is
asked to give reply to the charge-sheet, then there remains no meaning in submission of
the reply inasmuch as the authority has already decided to hold the enquiry and this is
real bias. Tarakeswar Nandi v. Food Corporation of India, 2002(1) SLR 480 Cal.
9. Enquiry Officer acting as Disciplinary Authority— One of the principles
of natural justice is that no person shall be a judge in his own cause or the adjudicating
authority must be impartial and must act without any kind of bias. The said rule against
bias has its origin from the maxim known as “Debet esse Judex in Propria Causa”,
which is based on the principle that justice not only be done but should manifestly be
seen to be done. This could be possible only when a judge or an adjudicating authority
decides the matter impartially and without carrying any kind of bias. Bias may be of
different kind and form. It may be pecuniary, personal or there may be bias as to the
subject-matter etc. Amar Nath Chowdhury v. Braithwaite and Company Ltd., 2002(1)
R. 15] PROCEDURE FOR IMPOSING PENALTIES 383
SCR 184: AIR 2002 SC 678: 2002(2) SCC 290: 2002(1) LLJ 1048: 2002(1) SCJ 268:
2002(2) SLJ 433: 2002(111) Comp Cas 707.
In this case, the question which arose was whether an authority can sit in
appeal against its own order passed in the capacity of Disciplinary Authority?
The facts were that the then Chairman-cum-Managing Director of the Company
acted as a Disciplinary Authority as well as an Appellate Authority when he presided
over and participated in the deliberations of the meeting of the Board while deciding the
appeal of the delinquent. It was held that such a dual function is not permissible on
account of established rule against bias. In a situation where such a dual function is
discharged by one and the same authority, unless permitted by an act of legislation or
statutory provisions, the same would be contrary to rule against bias. Where an
authority earlier had taken a decision, he is disqualified to sit in appeal against his own
decision, as he already prejudged the matter otherwise such an appeal would be termed
an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility.
Amar Nath Chowdhury v. Braithwaite and Company Ltd. (Supra).
In another case Regional Manager was the enquiring authority. It was not
proper for the Regional Manager to consider the enquiry report submitted by himself
and act as disciplinary authority. When Regional Manager was the enquiring authority,
authority superior in rank to him could be disciplinary authority. Punjab & Sind Bank v.
Chand Singh, 2001(4) SLR 694 P&H.
10. Disciplinary Authority is not Bound by Findings of Enquiry Officer —
The Disciplinary authority is not bound by the findings of Enquiry Officer. He has to
consider the evidence before him. Though he has to consider Enquiry Officer”s report,
he is not bound by the letters” finding. Krishna Chandra Tandon v. Union of India, AIR
1974 SC 1589: 1974(4) SCC 374: 1974 Lab IC 1010: 1974 SLJ 415: 1974(2) SLR 718.
The Disciplinary Committee is neither an appellate nor a revisional body over
the Inquiry Officer”s report. It must be borne in mind that the inquiry is primarily
intended to afford the delinquent officer a reasonable opportunity to meet the charges
made against him and also to afford the punishing authority with the material collected
in such inquiry as well as the views expressed by the Inquiry Officer thereon. The
findings of the Inquiry Officer are only his opinion on the materials, but such findings
are not binding on the disciplinary authority as the decision making authority is the
punishing authority and, therefore, that authority can come to its own conclusion, of
course bearing in mind the views expressed by the Inquiry Officer. But it is not
necessary that the disciplinary authority should “discuss materials in detail and contest
the conclusions of the Inquiry Officer”. Otherwise the position of the disciplinary
authority would get relegated to a subordinate level. High Court of Judicature at
Bombay, through its Registrar v. Shashikant S. Patil, 1999(5) SLR 615 (SC).
If in a particular case where there has been no proper enquiry because of some
serious defect having crept into the inquiry or some important witnesses were not
available at the time of the inquiry or were not examined, the Disciplinary Authority
may ask the Inquiry Officer to record further evidence but that provision would not
enable the Disciplinary Authority to set aside the previous enquiries on the ground that
384 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 15
the report of the Enquiry Officer does not appeal to the Disciplinary Authority. Union
of India v. P. Thayagarajan, AIR 1999 SC 449: 1998 Supp (3) SCR 114: 1999(1) SCC
733: 1998(5) SLR 734: 1999(2) SLJ 72: 1999(1) LLJ 507: 1999 Lab IC 169: 1999(81)
FLR 76: 1999(94) FJR 347
(iii) An assistant or official prepared office note. Note was signed by Director
and he did not pass any separate or independent order showing that he was satisfied for
reasons to be recorded by him. Director did not apply his mind. Order of dismissal set
aside for infraction of Article 311(2)(b) and the Disciplinary Rules. Union of India v.
Rajendra Prakash Tewari, 1970 SLR 392 (Delhi); Bibhuti Bhushan Paul v. State of
West Bengal, AIR 1967 Cal 29, see also State of Punjab v. Bakhtawar Singh, 1972
SLR 85; Aarander Singh v. General Manager, Northern Railway, 1973 SLJ 569:
1973(1) SLR 846.
(iv) Where the Disciplinary Authority failed to apply its mind to the report and
record of the inquiry before inflicting the punishment to the prejudice of the petitioner,
held, he failed to act justly and fairly but acted capriciously. Order of removal quashed.
Badrul Huda Ahmed v. State of Assam, 1972 SLR 62 Assam.
R. 15] PROCEDURE FOR IMPOSING PENALTIES 385
(v) The case file during the course of enquiry including the statements of
prosecution and defence witnesses had been gutted, in the fire. The Disciplinary
Authority passed penalty order on the basis of enquiry report. The Appellate Authority
rejected the appeal. Orders were quashed being based on no evidence. Chatter Singh v.
Deputy Commissioner, 1982(1) SLR 163.
Where —.
(a) the findings of the Enquiry Officer are based on flimsy grounds, and.
(b) the Disciplinary Authority and the Appellate Authority do not even look
into those findings,.
The orders of the Disciplinary and Appellate Authorities are vitiated by non-
application of mind and cannot be said to be proper speaking orders. N.S. D”Mello v.
Union of India, 1990(6) SLR 280 (CAT, Jabalpur).
12. Dismissal in default — Application informed the Registry by Post, praying
for disposal of his case on the basis of his pleadings and stating that he did not want
oral hearing. The letter did not come to the notice of the members who decided the
case. Application was dismissed for default. It was held that sufficient cause existed for
restoration of the application. K. Vaidyanathan v. Director General, Departmental of
Telecommunications, New Delhi, 1988(4) SLR 606 (CAT Madras). See also S.N. Singh
v. Rajasthan Atomic Power Project, 1993(7) SLR 421 Raj (DB).
Disciplinary Authority must consider every allegation in the charge and the
detailed explanation thereto. Merely saying that the matter has been considered, is not
enough. It shows non-application of the mind. A Palaniswamy v. Union of India,
1989(5) SLR 239 (CAT Madras). See also Dheru Ram v. State of Punjab, 1993(8) SLR
142 P&H (DB).
The employee is dismissed from duty due to unauthorised absence. Though the
copy of dismissal order is not supplied to him the dismissal becomes valid. Charanjit
Singh Khurana v. Union of India, 1994(2) SLR 519.
13. Disciplinary Authority Whether to Give Reasons for Accepting the
Findings of Enquiry officer — Where disciplinary authority disagrees with the
enquiry officer on certain articles of charges, then before recording its finding, it is duty
bound to record its tentative reasons for such disagreement and give the same to
delinquent officer for opportunity to represent. State Bank of India v. Arvind K. Shukla,
2001(1) LLJ 1419: AIR 2001 SC 2398: 2001(3) SLR 602.
It is conceivable that if the State Government does not accept the findings of
the Enquiry Tribunal which may be in favour of the delinquent officer and proposes to
impose a penalty on the delinquent officer, it should give reasons why it differs from
the conclusion of the Tribunal, though even in such a case it is not necessary that the
reasons should be detailed or elaborate. But where the State Government agrees with
the findings of the Tribunal which are against the delinquent officer, as a matter of law,
it could not be said that the State Government cannot impose the penalty in accordance
with the findings of the Tribunal unless it gives reasons to show why the said findings
were accepted by it. State of Madras v. A.R. Srinivasan, 1967(1) SCJ 855: 1969(II)
386 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 15
SCWR 524: AIR 1966 SC 1827; State of Haryana v. Ram Chander, 1976 SLJ 689:
1976(2) SLR 690; State of Haryana v. Ram Kumar, 1982(1) SLR 267; Shaymlal Tyagi
v. H.S.E.B., 1982(2) SLR 575.
If a Disciplinary Authority agrees with the recommendations of the Inquiry
Authority, reasons need not be given. If it disagrees then reasons have to be given
though not elaborately or in depth. K.V.Hanumantha Rao v. High Court of A.P.,
1988(2) SLR 464 para 11 CAT (DB) (Reviews case law).
Disciplinary authority, if it agrees with the findings of the Inquiry Officer, need
not give reasons. Ram Singh v. Union of India, 1988(6) SLR 218 (CAT Chandigarh).
It has now been settled by the Supreme Court that when the Disciplinary
Authority agrees with the findings of the Enquiry Officer and accepts the reasons given
by him in support of such findings, it is not necessary for the punishing authority to re-
appraise the evidence to arrive at the same findings. State Bank of Bikaner and Jaipur
v. Prabhu Dayal Grover, AIR 1996 SC 320: 1995(6) SCC 279: 1995(2) BC 485: 1996
Lab IC 210: 1996(72) FLR 1: 1996(1) LLJ 288: 1996(1) SLJ 145.
14. Quasi-judicial Authorities should Indicate Reasons — The quasi judicial
authorities should indicate the reasons. But if the reasons can be found out either from
the order itself or from other documents it would not be proper to strike down the order
merely because the formal reasons had not been recorded in the order itself. Hari
Prasad Singh v. Commissioner of Income Tax, AIR 1972 Cal 27; Nand Kishore Prasad
v. State of Bihar, 1978 SLJ 591: 1978(2) SLR 46: AIR 1978 SC 1277: 1978(3) SCR
708: 1978(3) SCC 366: 1978 Lab IC 1106.
The punishing authority is a quasi judicial authority and his order is subject to
appeal etc. As a quasi judicial authority, it is incumbent upon him to write a reasoned
order so that the Appellate Authority may know as to what prevailed with the punishing
authority while punishing the delinquent officer. No hard and fast principles can be laid
down as to what should be written in the order. It is not necessary that he should write a
detailed order, but it is required that he should record reasons in the order, so that the
delinquent can effectively challenge them in appeal etc. Bhagat Raja v. Union of India,
AIR 1967 SC 1606: 1967(3) SCR 302; Vijay Singh Yadav v. State of Haryana, 1971(1)
SLR 720; Tarlochan Singh v. State of Punjab, 1975 SLJ 387; P.K. Mittal v. State of
Punjab, 1982(2) SLR 267.
Disciplinary Authority without supplying inquiry report gave show cause
notice proposing to dismiss the employee on the charges from which employee was
exonerated by inquiry officer. Held that if prima facie looks unfair and matter remitted
to disciplinary authority to communicate reasons for his disagreement with the Enquiry
Officers findings to the employee, hear him and pass orders according to law. R.R.
Gabhane v. State of Madhya Pradesh, 1998(8) SCC 549: 1999(3) LLJ 324.
15. Disciplinary Authority: Power to interfere with other enquiries— If in a
particular case where there has been no proper enquiry because of some serious defect
having crept into the inquiry or some important witnesses were not available at the time
of the inquiry or were not examined, the Disciplinary Authority may ask the Inquiry
Officer to record further evidence but that provision would not enable the Disciplinary
R. 15] PROCEDURE FOR IMPOSING PENALTIES 387
Authority to set aside the previous enquiries on the ground that the report of the
Enquiry Officer does not appeal to the Disciplinary Authority. In this case the basis
upon which the Disciplinary Authority set aside the enquiry was that the procedure
adopted by the Enquiry Officer was contrary to the relevant rules and affects the rights
of the parties and not that the report does not appeal to him. When important evidence,
either to be relied upon by the department or by the delinquent official, is shut out, this
would not result in any advancement of any justice but on the other hand result in a
miscarriage thereof. Therefore, the Disciplinary Authority may record his findings on
the report and pass an appropriate order including ordering a de nova enquiry in a case
of this nature. Union of India v. P. Thayagarajan, AIR 1999 SC 449: 1999(1) SCC 733:
1998(5) SLR 734: 1999(2) SLJ 72: 1999(1) LLJ 507: 1999 LIC 169: 1999(81) FLR 76:
1999(94) FJR 347.
16. Order of Disciplinary Authority to Show what Charges had been
Established — Where the order of disciplinary authority does not show what charges
against the delinquent officer had been established, the said order is not a speaking
order and it cannot be upheld. State of Punjab v. Bakhtawar Singh, 1972(4) SCC 730:
AIR 1972 SC 2083: 1972 SLR 85 (SC).
Neither the finding nor the recommendations of the Inquiry Officer are binding
on the Disciplinary Authority. If there are charges against the employee, it is for the
Disciplinary Authority to be satisfied that the employee is guilty and deserves
punishment proposed. The satisfaction of the Inquiry Officer cannot take place of the
satisfaction of the Disciplinary Authority, as this would amount to his acting in a
mechanical way. After the report is received, the Disciplinary Authority is entitled to
consider the report and the evidence led against the delinquent employee. The
Disciplinary Authority may agree with the report or may differ either wholly or
partially from the conclusions recorded in the report. The enquiry report along with the
evidence recorded constitute material on which the Disciplinary Authority has
ultimately to act. Dilbir Singh v. State of Punjab, 1999(3) SLR 140 P&H.
Consideration of the enquiry report in the light of the representation made by
the government employee cannot be taken to be a mere formality because fair play
requires recording of reasons when order affects the right of a person. Recording of
reasons is also an assurance that the Authority concerned applied its mind to the facts
on record. It also aids the appellate or Revisional Authority or supervisory jurisdiction
of the High Court under Article 226 of the Constitution of India to see whether the
Authority concerned acted fairly and justly to meet out justice to the aggrieved person.
Dilbir Singh v. State of Punjab (supra).
17. Order should be a Speaking Order — To understand the approach of the
punishing authority and also the mind of the Appellate Authority and the grounds on
which the impugned orders have been passed, it is necessary that the order should be a
speaking order and should give the grounds on which it has been passed. Mohinder
Singh v. State of Punjab, 1968 Cur LJ (P&H) 476; Ram Sahai v. G.M., Northern Rly,
1967 Cur LJ (P&H) 296; Bhagat Raja v. Union of India, AIR 1967 SC 1606; Rajinder
Singh v. Punjab State, 1969 Cur LJ 821: 1969 SLR 754; Rajinder Pal v. State of
Punjab, 1971(2) SLR 130: AIR 1971 Punjab 290; H.K. Khanna v. Union of India,
388 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 15
1971(1) SLR 618; Nand Kishore Prasad v. State of Bihar, AIR 1978 SC 1277: 1978(3)
SCR 708: 1978(3) SCC 366: 1978(2) SLR 46: 1978 SLJ 591: 1978 Lab IC 1106:
1978(2) LLJ 84: 1978 SLJ 591: 1978(2) LLN 278.
The matter can not be dealt with as routine administrative matter as it is a quasi
judicial matter involving service career of the employee and the Competent Authority is
required to pass speaking order by giving reasons for imposing the penalty after
considering the enquiry report, representation of the petitioner and other material
concerning disciplinary proceedings on record. Whenever an Authority decides a
matter, which entails civil consequences to the person concerned, it must pass speaking
order giving reasons. Yashpal Singh v. National Textile Corporation Ltd., 1999(1) SLR
680 HP (DB).
In one case the Disciplinary Authority did not agree with the finding of the
Enquiry Officer and issued the notice to the petitioner to show cause as to why he
should not be punished as he did not agree with the finding recorded by the Enquiry
Officer. Order, though run into seven typed pages, it was as good as a non-speaking
order. Only in seven lines the Disciplinary Authority said that he does not agree with
the cause shown by the petitioner in his reply. The impugned order set aside as it was a
non-speaking order. Paras Ram v. State of Rajasthan, 1999(1) SLR 581 Raj.
After a regular enquiry the Enquiry Officer held that the charge was not
proved. The Disciplinary Authority, however, did not agree with the report of the
Enquiry Officer and came to the conclusion that the charge against the respondent stood
proved. The respondent was consequently served with notice to show cause as to why
he should not be removed from service. After taking into consideration his explanation,
the following order was passed:—
“I have thoroughly gone through the defence put up. There is no new point put
up by him which needs further consideration. He is considered guilty of charge
of theft and is removed from service”.
The order does not show as to what were the points raised by the respondent
and why were those found to be not tenable. Order quashed not being a speaking order.
Union of India v. Krishan Kumar, 1982(1) SLR 359.
The respondent had raised a plea that a witness had been coerced by the
Enquiry Officer to make a statement against him even though on an earlier occasion he
had made a statement in his favour. This was an important plea about the character of
the Enquiry Officer. If the dismissing authority wanted to accept the report of the
Enquiry Officer, it had to give a finding that the said Enquiry Officer was, not proved
to be biased. No such thing is mentioned in the order. The order of punishing authority
was held not being a speaking order. Union of India v. Lila Dhar, 1982(1) SLJ 646.
18. Extraneous Matters not be Considered — The disciplinary authority
should not take into consideration extraneous matters. He is to act in quasi judicial
manner. Ramarao Laxmikant Shirkhedkar v. Accountant General, Maharashtra, AIR
1963 Bom 121; State of Mysore v. K. Manche Gowda, AIR 1964 SC 506: 1964 (4)
SCR 540.
R. 15] PROCEDURE FOR IMPOSING PENALTIES 389
Neither in the charge-sheet nor in the show cause notice, was ever a reference
made that the previous service record of the Officer will be considered by the
disciplinary authority. The disciplinary authority took into consideration the past record
the ordered dismissal. Order quashed. Ramshai v. Board of Revenue, Rajasthan, 1977
SLJ 241: 1977(1) SLR 605; General Manager, Northern Railway v. Harbans Singh,
1979(3) SLR 590.
In a departmental inquiry finding on a charge not included in the charge-sheet
is not permissible. Y.K. Verma v. Union of India, 1988(1) SLR 15, 25, 27 para 32, 39
(CAT Jabalpur).
Consideration of extraneous material in the form of adverse comments of
another Officer while the report of Enquiry Officer was in favour of employee. Matter
remanded with the direction that disciplinary authority should decide the matter afresh
only on the basis of the relevant material excluding from consideration the extraneous
material in the form of adverse comments of the other officer. Uttar Pradesh State Agro
Industrial Corporation Ltd. v. Padam Chand Jain, 1995(30) ATC 328: 1995(4) SLR
742: 1995(2) LLJ 697.
Interference with the decision of departmental authorities can be permitted,
while exercising jurisdiction under Article 226 of the Constitution if such authority had
held proceedings or in violation of the principles of natural justice or in violation of
statutory regulations prescribing the mode of such inquiry or if the decision of the
authority is vitiated by considerations extraneous to the evidence and merits of the case
etc. High Court of Judicature at Bombay v. Shashikant S. Patil, 2000(1) SCC 416: AIR
2000 SC 22: 1999 Lab IC 3833: 1999(83) FLR 1001: 1999(5) SLR 615: 2000(1) SCJ
10: 2000(2) SLJ 98: 2000(1) LLN 317.
Consideration of extraneous material in the form of adverse comments of
another Officer while the report of Enquiry Officer was in favour of employee, held not
proper. Matter remanded with the direction that disciplinary authority should decide the
matter afresh only on the basis of the relevant material excluding from consideration
the extraneous material in the form of adverse comments of the other officer. Uttar
Pradesh State Agro Industrial Corporation Ltd. v. Padam Chand Jain, 1995(30) ATC
328: 1995(4) SLR 742: 1995(2) LLJ 697.
19. Suspicion, no Substitute for Proof — However strong the suspicion is, it
can not be substituted for conclusive proof. Penalty cannot be imposed. K.S. Yadav v.
Municipal Corporation of Delhi, 1981(1) SLJ 394.
Though the degree of proof required in Disciplinary Proceedings is not of the
standard required in criminal case but the suspicion cannot be substituted for proof even
in Disciplinary Proceedings. Ministry of Finance v. S.B. Ramesh, 1998(3) SCC 227:
AIR 1998 SC 853: 1998(78) FLR 700: 1998(1) SLR 618: 1998(2) SLJ 67: 1998 Lab IC
623: 1998(1) LLN 968
20. High Court not to Review Materials in a Writ, If Enquiry Properly
Held — In departmental proceedings, the Disciplinary Authority is the sole Judge of
facts and in case an appeal is presented to the Appellate Authority, the Appellate
Authority has also the power/and jurisdiction to re-appreciate the evidence and come to
390 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 15
its own conclusion, on facts, being the sole fact finding authorities. Once findings of
fact, based on appreciation of evidence are recorded, the High Court in Writ
Jurisdiction may not normally interfere with those factual findings unless it finds that
the recorded findings were based either on no evidence or that the findings were wholly
perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not
permitted to be canvassed before the High Court. Since, the High Court does not sit as
an Appellate Authority, over the factual findings recorded during departmental
proceedings, while exercising the power of judicial review, the High Court cannot
normally speaking substitute its own conclusion, with regard to the guilt of the
delinquent, for that of the departmental authorities. Even insofar as imposition of
penalty or punishment is concerned, unless the punishment or penalty imposed by the
Disciplinary or the Departmental Appellate Authority, is either impermissible or such
that it shocks the conscience of the High Court, it should not normally substitute its
own opinion and impose some other punishment or penalty. Apparel Export Promotion
Council v. A.K. Chopra, AIR 1999 SC 625: 1999(1) SCC 759: 1999(1) LLJ 962:
1999(1) SCJ 265: 1999(1) KLT 38(SN): 1999 Lab IC 918: 1999(1) LLN 1067: 1999(81)
FLR 462: 2000(1) SLJ 65.
A conclusion or a finding of fact arrived at in a disciplinary enquiry can be
interfered with by the court only when there are no materials for the said conclusion, or
that on the materials, the conclusion cannot be that of a reasonable man. Syed
Rahimuddin v. Director General, CSIR, AIR 2002 SC 2418: 2002 SCC (L&S) 251:
2001(3) JT 609: 2002(4) SLR 165 (SC): 2001(89) FLR 427: 2001 AIRSCW 2388:
2001(2) AllWC 2388: 2001(2) AllWC 1247: 2001(1) Cur LR 36.
Where there are some relevant materials which the disciplinary authority has
accepted and which may reasonably support the conclusion, it is not the function of the
High Court exercising its jurisdiction under Article 226 to review the materials and to
arrive at an independent finding. If the enquiry has been properly held the question of
adequacy or reliability of the evidence cannot be canvassed before High Court. Union
of India v. Sardar Bahadur, 1971(II) SCWR 712: 1972 SLR 355; State of Andhra
Pradesh v. Sree Rama Rao, 1964(3) SCR 28 at page 33: 1964(1) SCJ 402: AIR 1963 SC
1723: 1964(3) SCR 25: 1964(2) LLJ 150: 1964(1) SCJ 402; State of A.P. v. Chitra
Venkata Rao, AIR 1975 SC 2151: 1976(1) SCR 521: 1975(2) SCC 557: 1975 Lab IC
1585: 1976(2) SCJ 227: 1975 SLJ 772: 1976(1) SLR 653; D.J. Warkari v. K.V.
Karanjkar, 1980(1) SLR 838.
21. High Court whether to Appraise Evidence in Writ — It was pointed out
by the Supreme Court in case of State of Orissa v. Murlidhar, AIR 1963 SC 404 that in
a proceeding under Article 226 and 227 of the Constitution, the High Court is not to sit
in appeal over the finding recorded by a competent Tribunal in a departmental enquiry.
If the High Court purports to re-appreciate the evidence for itself that would be outside
its jurisdiction. If, however, it is shown that the findings recorded by the Tribunal, are
not supported by any evidence, the High Court would be justified in setting aside the
findings. Muralidhar Mishra v. District Judge, Cuttack, 1977 SLJ 344. Sufficiency of
evidence in proof of the finding by a domestic tribunal is beyond scrutiny. State of
Haryana v. Rattan Singh, 1977(2) SCJ 140: AIR 1977 SC 1512: 1977(2) SCC 491:
1977 Lab IC 845: 1977(1) SLR 750: 1977 SLJ 408; Somnath Sahu v. State of Orissa,
R. 15] PROCEDURE FOR IMPOSING PENALTIES 391
1981(2) SLR 550 (SC); Kashi Ram Verma v. Municipal Committee, Mausa, 1981(1)
SLJ 203: 1981(1) SLR 290 (SC).
Judicial Review, not being an appeal from a decision, but a review of the
manner in which the decision was arrived at, the Court while exercising the power of
Judicial Review must remain conscious of the fact that if the decision has been arrived
at by the Administrative Authority after following the principles established by law and
the rules of natural justice and the individual has received a fair treatment to meet the
case against him, the Court cannot substitute its judgment for that of the Administrative
Authority on a matter which fell squarely within the sphere of jurisdiction of that
authority. Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625: 1999
(1) SCC 759: 1999 (1) LLJ 962: 1999 (1) SCJ 265: 1999 (1) KLT 38(SN): 1999 Lab IC
918: 1999(1) LLN 1067: 1999(81) FLR 462: 2000(1) SLJ 65.
If the disciplinary authority gives reasons for disagreeing with the findings of
enquiring officer then the Court cannot interfere with those findings unless it comes to
the conclusion that no reasonable man can come to the said finding. Held that there is
no force in the submission of the learned counsel appearing for the delinquent
government servant that before the disciplinary authority proceeds to award
punishment, the delinquent government servant should have been afforded a further
opportunity of hearing. Held further that charges having been framed and the delinquent
government servant having filed his show cause to the set of charges, the regular
enquiry having been held and the enquiring officer having recorded his findings and
thereafter the disciplinary authority having disagreed with the findings by recording the
reasons therefore and ultimately awarding minor punishment of stoppage of one
increment without cumulative effect, there is no procedural irregularity therein nor can
it be said that there has been any violation of principle of natural justice. State of
Rajasthan v. M.C. Saxena, 1998(3) SCC 385: AIR 1998 SC 1150: 1998(2) JT 103:
1998(1) SLR 787: 1998(1) LLJ 1244: 1998(79) FLR 140: 1998(3) SLJ 10: 1998 Lab IC
1038: 1998(93) FJR 582: 2000(1) LLN 35.
Appreciation of evidence which has already been scrutinised by the Enquiry
Officer as also by Disciplinary proceedings is permissible where the findings are
perverse and are not supported by evidence on record or the findings recorded at the
domestic trial are such to which no reasonable person would have reached and therefore
the Courts have power to interfere in the matter. Yoginath D. Bagde v. State of
Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR
377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39.
22. Challenge to Departmental proceedings by Public Interest Litigation—
Departmental proceedings against IPS officer on the ground of misconduct was
challenged by a practising advocate by way of Public Interest Litigation. Held, it is
essentially a matter between employer and employee. A stranger much less a practising
advocate. It was held that a mere busy-body who has no interest cannot invoke the
jurisdiction of the Court. In respect of the departmental proceedings which are initiated
or sought to be initiated by the Government against its employees, a person who is not
even remotely connected with those proceedings cannot challenge any aspect of the
departmental proceedings or action by filing a Writ Petition in the High Court or in this
392 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 15
Court. Disciplinary action against an employee is taken by the Government for various
reasons principally for “misconduct” on the part of the employee. This action is taken
after a “domestic” enquiry in which the employee is provided an opportunity of hearing
as required by the constitutional mandate. It is essentially a matter between the
employer and the employee, and a stranger, much less a practising advocate, cannot be
said to have any interest in those proceedings. Public Interest of general importance is
not involved in disciplinary proceedings. In fact, if such petitions are entertained at the
instance of persons who are not connected with those proceedings. It would amount to
an abuse of the process of Court. Rajnit Prasad v. Union of India, AIR 2000 SC 3469:
2000(9) SCC 313: 2000(2) JT 31: 2000(1) SLR 663: 2000(2) LLN 86.
23. Minor Irregularity in Conducting Enquiry does not Vitiate a Correct
Finding — Any minor irregularity in the matter of conducting the enquiry cannot
vitiate a finding which is so obviously correct. Once it is held that the respondent was
properly found guilty under charge No. 1, it is unnecessary to go into the other charges.
State of U.P. v. Om Prakash Gupta, 1970(1) SCWR 139: AIR 1970 SC 679: 1969(3)
SCC 775: 1969 SLR 890: 1970 Lab IC 568.
24. Public Service Commission: Advice of — (i) The disciplinary authority
should not act mechanically on the advice of the Public Service Commission but should
apply his own mind to the case. Ramchandra Chaudhri v. Secretary to Government,
West Bengal, AIR 1964 Cal 265; Iswar Chandra Mohanty v. State of Orissa, AIR 1966
Ori 173; J.L.Mair v. State of Punjab, AIR 1968 Punjab 324; Shrikrishan v. State of
M.P., AIR 1970 MP 162. Governor cannot consult the P.S.C. in the case of the judicial
affairs and accept its advice and act accordingly. The advice should be of no other
authority than the High Court. Baldev Raj Guliani v. P&H High Court, 1977(1) SCR
425: AIR 1976 SC 2490: 1976(4) SCC 201: 1976(2) SLR 758: 1976 Lab IC 1633:
1977(1) LLN 14: 1976 SLJ 601: 1976 SLWR 511: 1976 SCC (Lab) 571.
(ii) The opinion given by P.S.C. is not binding. The impugned order is not
vitiated if the opinion of P.S.C. is not followed. There is no warrant of law that if no
reasons are given for not following the opinion of P.S.C., the order is bad. O.N. Saxena
(Dr.) v. State of Rajasthan, 1980 SLJ 582.
25. Public Service Commission, Consultation with — The provisions of
Article 320(3)(c) of the Constitution were not mandatory and did not confer any rights
on the public servant. Termination of service without consultation of Public Service
Commission not invalid. Ram Gopal Chaturvedi v. State of M.P., AIR 1970 SC 158:
1970(1) SCR 472: 1969(2) SCC 240: 1969 SLR 429: 1970(1) LLJ 367: 1970(1) SCJ
257: 1969(1) SCWR 1115, State of U.P. v. M.L. Srivastava, AIR 1957 SC 192; J.M.J.S.
Alexandra Gonsalves Pereira v. Administrator of Goa, 1982(2) SLJ 132.
26. Commissions” Recommendations of Advice, Non-supply of, to
Delinquent Officer for his Comments — Article 311 of the Constitution is not
controlled by Article 320. Therefore, the reasonable opportunity contemplated under
Article 311 does not cover the furnishing of the advice of the Commission to the
delinquent officer for offering his remarks on such advice or recommendations. On non-
supply of Commissions” report, the impugned order is not vitiated. Chief Engineer v. A.
Changalvarayan, 1982(2) SLR 662.
R. 15] PROCEDURE FOR IMPOSING PENALTIES 393
The Enquiry Officer sent enquiry report to the Disciplinary Authority through
the Chief Vigilance Commissioner, who as per Government practice is required to
tender confidential comments and recommendations and also advising what penalty
should be imposed. These comments and recommendations not brought to the notice of
delinquent officer. Opinion of an august body like Central Vigilance Commission
would obviously carry great weight with the Disciplinary Authority in reaching a final
conclusion. Impugned order bad in law. A.K. Roy Chaudhry v. Union of India, 1982(1)
SLR 443: 1982(1) SLJ 186 Guj.
28. Charge for Major Penalty, Minor Penalty can be Imposed — Charge-
sheet for major penalty, minor penalty can be imposed. M.M. Dutta v. Union of India,
AIR 1969 Cal 604; K.K. Mittal v. Union of India, 1974(2) SLR 602 Delhi; Keshri Mal
v. State of Rajasthan, 1979(3) SLR 1.
394 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 15
However where the disciplinary proceedings were initiated for a charge which
entails minor penalty, the Disciplinary Authority is not permitted to convert it to major
penalty after completion in of inquiry. Deep Chand v. Union of India, 2002(3) SLR 665 Gau.
When an inquiry has been held for imposition of a major penalty and finally
minor penalty is awarded, the suspension should be considered unjustified and in terms
of F.R. 54B the employee should be paid full pay and allowances for the period of
suspension by passing a suitable order under F.R. 54-B. S.P. Naik v. Board of Trustees,
Mormugao Port Trust, Goa, 1999(3) SLR 577 Bom (DB).
29. Punishment After Retirement — Order of suspension passed pending
enquiry into charges. Petitioner submitted written explanation denying the truth of
charges. Enquiry not started. Petitioner”s superannuation after the notice served on him
to attend enquiry. Petitioner replied that authorities had no jurisdiction to conduct any
enquiry as he had retired. Enquiry held ex parte and show cause notice issued why a cut
of 25 per cent should not made in his pension and thereafter penalty imposed. Order
held illegal and void. N.L. Sastry v. State of A.P., 1969 SLR 372; State of Assam v.
Padma Ram, AIR 1965 SC 473.
A disciplinary proceeding against a Government servant comes to an end when
he retires and there is no power in Government to retain him in service so that a
punishment may be imposed on him in a pending disciplinary proceeding. K.S.
Rajasekhriah v. State of Mysore, 1968 SLR 269; Subba Rao v. State of Mysore, 1963
(1) Mys LJ 80; A.R.R. Deshpande v. Union of India, (1971) 2 SLR 776; O.P.Gupta v.
Union of India, 1981 (3) SLR 778; Mukhtiar Chand Dhir v. State of Punjab, 1982 (1)
SLR 889.
Where in the service rules no specific provision was made for deducting any
amount from the provident fund consequent to any misconduct determined in the
departmental enquiry nor was any provision made for continuance of departmental
enquiry after superannuation. Held that in view of the absence of such provisions in the
abovesaid regulations, it must be held that the Corporation had no legal authority to
make any reduction in the retiral benefits of the appellant. There is also no provision for
conducting a disciplinary enquiry after retirement of the appellant and nor any
provision stating that in case misconduct is established, a deduction could be made
from retiral benefits. Bhagirathi Jena v. Board of Directors, O.S.F.C., 1999(3) SCC
666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999
Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143: 1999(95) FJR 21: 1999(3) SLJ 294.
When no disciplinary action is initiated under All India Service Rules while the
employee was in service disciplinary action cannot be taken after the retirement of the
employee and similar proceedings initiated under State Rules prior to promotion of the
candidate to All India Service cannot be continued after such promotion. State of
Rajasthan v. P.D. Paliwal, 2002(2) SLR 164 Raj (DB).
In another case it was held that the Government can conduct inquiry into
misconduct, negligence or financial irregularity even after retirement of an employee.
D.C. Mazumdar v. Union of India, 1999(5) SLR 338 Delhi (DB): 1999(77) DLT 442:
1999(1) AD(Delhi) 649: 1999(1) LLJ 871.
R. 15] PROCEDURE FOR IMPOSING PENALTIES 395
The enquiry proceedings can be legally continued against the officer even if he
has been prematurely retired from service. P.K. Jain v. State of Haryana, 1999(1) SLR
337 P&H (DB); relying upon Ishar Singh v. State of Punjab, 1994(3) Recent Services
Judgments (RSJ) 543: 1993(4) SLR 655 (P&H) (FB).
AIR 1966 SC 951: 1966(2) SCR 204: (1967) 1 SCJ 404: 1967 SLR 657. In Puran Singh
v. State of Punjab, 1982 (2) SLR 126, the dismissal was also quashed.
Order dated 17-10-1950 that appellant be dismissed from service w.e.f the date
of suspension, that is to say from 20-05-1949. In substance, this order directed that (1)
the appellant be dismissed, and (2) the dismissal do operate retrospectively as from
May 20, 1949. First part of the order is valid and second part in invalid. The invalidity
of the second part does not effect the first part of the order. Appellant lawfully
dismissed. Order of dismissal as from 17-10-1950 is valid and effective. R.
Jeevaratnam v. State of Madras, 1966(II) SCWR 464: AIR 1966 SC 951: 1966(2) SCR
204: 1967 SLR 657: 1967(14) FLR 285: 1967(1) LLJ 391: 1967(1) SCJ 404.
33. Punishment, Discrimination in Imposing of — Two Government servants
were convicted for the same offence arising not of the same incident. It was not open to
the disciplinary authority to allow one to join his duties and to remove the other from
service. Plea of hostile discrimination is well founded. Dost Mohammed v. Union of
India, 1981(3) SLR 274 AP. See also S.N. Singh v. Rajasthan Atomic Power Project,
1993(7) SLR 421 Raj (DB).
Delinquent with four other persons charged with beating and some of the
charges were proved but Disciplinary authority passed the order of dismissal of
delinquent but order of stoppage of five increments in respect of others. It is
undoubtedly open for the disciplinary authority to deal with the delinquency and once
charges are established to award appropriate punishment. But when the charges are
same and identical in relation to one and the same incident, then to deal with the
delinquents differently in the award of punishment, would be discriminatory. Held that
it was not open for the disciplinary authority to impose different punishments for
different delinquents for same charge. State of Uttar Pradesh v. Raj Pal Singh, 2001
Supp (1) JT 44: 2001(4) SLT 294.
Merely because one of the employees was wrongly given the lesser punishment
compared to others against whom there was a proved misconduct is not a ground that
they too should also be given the lesser punishment. Balbir Chand v. Food Corporation
of India Ltd., AIR 1997 SC 2229: 1996 Supp (10) SCR 156: 1997(3) SCC 371: 1997(2)
LLJ 879: 1997(77) FLR 267: 1997(3) LLN 82: 1998(79) FLR 494: 1997(1) SLR 756.
One of the delinquents granted back wages while passing the consequential
order for reinstatement while the other delinquent denied back wages on flimsy
grounds. Held that in the absence of very relevant and exceptional circumstances, the
consequential order should also be of similar import in both the cases therefore denial
of back wages by Tribunal is improper. Ramesh Chander v. Delhi Administration,
1996(10) SCC 409: 1996(3) SLJ 124: 1996(5) SLR 166: 1996(74) FLR 2235: 1997(3)
LLJ 509.
However in another case the court took a different view. Court Martial and
conviction due to involvement of delinquents in agitation became final. Thereafter in
proceedings under Rule 19 of C.C.S. Rules order of compulsory retirement passed.
Some other persons involved in agitation awarded lesser punishment. It was held that
Court ordinarily would not interfere with order on quantum of punishment once Court
R. 15] PROCEDURE FOR IMPOSING PENALTIES 397
comes to a conclusion that there has been no infirmity with procedure. Union of India v.
P. Chandra Mouli, 2001(3) SLT 205
34. Punishment, Consideration of by Court — (i) If the order of the
Government can be supported on any finding as to substantial misdemeanour for which
the punishment imposed can be lawfully imposed, it is not for the court to consider
whether that ground alone would have weighed with the authority dismissing the public
servant. State of Orissa v. Bidyabhusham, AIR 1963 SC 779: 1963 Sup(1) SCR 648:
1963(1) LLJ 239; State of U.P. v. Om Prakash Gupta, AIR 1970 SC 679: 1969(3) SCC
775: 1969 SLR 890: 1970 Lab IC 568: 1970(1) SCWR 139; Murlidhar Mishra v.
District Judge, Cuttack, 1977 SLJ 344.
(ii) The court is not concerned to decide whether the punishment imposed,
provided it is justified by rules, is appropriate by having regard to the misdemeanour
established. Union of India v. Sardar Bahadur, 1971(II) SCWR 712: 1972 SLR 355.
(iii) High Court cannot interfere with the order on the ground of severity of the
punishment in the absence of any statutory provisions barring cumulative punishment.
Sant Kumar Banerjee v. Collector, 1970 Lab IC 1641; Natarajan v. Divisional
Superintendent, Southern Railway, 1976(1) SLR 669: 1976 Lab IC 363.
(iv) Court has no business to interfere with punishment when justifiably
awarded. The quantum of punishment is also not a matter for the Court to look into. But
the position cannot be lost sight of that if without justification punishment be imposed,
security of service might be affected and ultimately the purpose of giving protection to
public officers would be lost. Purnachandra Dash v. State of Orissa, 1981(2) SLR 769.
(v) If the decision on the question of penalty is not right, just, fair and
reasonable and it is vitiated due to arbitrary exercise of the penal powers, the same
requires to be quashed and set aside. Bhim Singh Sardar Singh v. District Supdt. of
Police, 1982(2) SLR 629 Guj.
(vi) Quantum of punishment is the prerogative of the Disciplinary Authority.
No one else should be allowed to influence it. Advice of the Central Vigilance
Commission should not extent to the punishment to be meted out. N. Sunderamurthy v.
Lt. Governor, Pondicherry, 1990(6) SLR 212, 223, 224 para 4 (CAT Mad).
35. Order of Punishment, Whether should be in Standardised Form — The
form has been evolved in administrative instructions for the guidance of punishing
authorities and in not a part of the rules. Failure to use a prescribed form in passing an
order by itself does not nullify the order. Director of Postal Services v. Daya Nand,
1972 SLR 325.
Order had been issued in standard form by filling up the blanks. Order without
application of mind in a mechanical manner cannot be maintained. Order of punishment
should be a speaking order and if the punishing authority does not appear to apply its
mind to the material on record then it is vitiated. Union of India v. Raghubir Saran,
1982 Lab IC 1894.
36. Removal or Dismissal by an Authority Subordinate to that by which
Civil Servant was Appointed if Void and Inoperative — Mysore State Road
398 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 15
Transport Corporation v. Mirza Khasim Ali Beg, AIR 1977 SC 747: 1977(2) SCC 457:
1977(1) LLJ 262: 1977 Lab IC 272: 1977(1) SLR 237; Babaji Charan Rout v. State of
Orissa, 1982(1) SLJ 496: 1982 Lab IC 603; Dinanath v. District Medical Officer,
1982(2) SLJ 691.
The penalty of removal from service cannot be imposed without recourse to
disciplinary proceedings. An employee cannot be removed or dismissed by an authority
other than by which he was appointed unless the appointing authority has made prior
delegation of such authority to such other person or authority in writing. Uttar Pradesh
Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753:
1999(1) SCC 741: 1999(1) CLT 134(SC): 1999(2) SLR 576: 1999(1) LLJ 633: 1999(1)
LLN 1081: 1999(3) SLJ 124 .
The power of appointment carries with it the power to dismiss, discharge,
remove an employee or to terminate his services in accordance with the conditions of
employment. Post Graduate Institute of Medical Education v. Sham Lal, 1974 SLJ 365:
1974 (2) SLR 814; Union of India v. Gurbaksh Singh, AIR 1975 SC 641: 1975(3) SCR
444: 1975(3) SCC 638: 1975 SLJ 554: 1975(1) SCJ 351.
In Moti Ram Deka v. General Manager, N.E.F. Railway, AIR 1964 SC 600:
1964(5) SCR 638, which is the leading case on the meaning of “dismissal” and
“removal”, it was held that rules cannot trespass upon or curtail the rights guaranteed
by Article 311 of the Constitution. Thus an authority subordinate to the appointing
authority cannot be authorised to dismiss a civil servant. Balak Das v. Astt. Security
Officer, AIR 1960 MP 183.
For the penalties in relation to Rule 11 of the CCS (CCA) Rules are as
mentioned in items (i) to (ix), the authority competent to impose the penalty is the Head
of the Office. As a result, the Head of Office, namely, the Assistant Manager is the
competent authority to appoint. Once he is the competent authority to appoint, he is
equally, the competent authority to impose the penalty. Himachal Road Transport
Corporation v. Kewal Krishan, AIR 1997 SC 2667: 1997 (9) SCC 39: 1997 (2) SLR
580: 1997 (76) FLR 233: 1997 (2) SCJ 172: 1997 Lab IC 2652: 1998 (1) LLJ 1058:
1998 (1) SLJ 44: 1998 (3) LLN 24. As regards competent authority to issue charge
sheet, see Government of Tamil Nadu v. S. Vel Raj, AIR 1997 SC 1900: 1997 (2) SCC
708: 1997 (1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3)
LLJ 1; Inspector General of Police v. Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC
145: 1996 (6) JT 450: 1996 SCC (L&S) 433: 1996 (32) ATC 663: 1996 (2) SLR 470:
1996 (1) UJ 424: 1996 (74) FLR 2510: 1996 (2) LLN 515: 1997 (2) LLJ 191.
Where the authorities which had appointed a civil servant to service or to the
grade or to a particular post are different for the purpose of the rule and therefore, for
Article 311 of the Constitution, the appointing authority would be the highest of the
three authorities. K.K. Mittal v. Union of India, 1974(2) SLR 602; Dharma Dev Mehta
v. Union of India, AIR 1980 SC 557: 1980(2) SCR 554: 1980(2) SCC 205: 1980 Lab IC
383: 1980(1) SLR 414.
However a person entrusted with the charge of the office is entitled to exercise
all executive powers, perform duties and discharge functions attached to those offices
R. 16] PROCEDURE FOR IMPOSING PENALTIES 399
including the power to impose penalty. Gopalji Khanna v. Allahabad Bank, AIR 1996
SC 1729: 1996(2) SCR 1068: 1996(3) SCC 538: 1996(2) SLR 315: 1996(1) BC 574:
1996 SCC(L&S) 766: 1996(1) LLN 806: 1996(2) LLJ 121.
37. Second Opportunity Rule not Applicable Even to Proceedings Initiated
Prior to 1977 — The second opportunity rule in Article 311(2) stood prior to
Constitution Forty Second Amendment Act, 1976, which came into force w.e.f.
03-01-1977. Consequently, Rule 15(4) was amended w.e.f. 02-09-1978. These
amendments clearly imply that in respect pending disciplinary proceedings also the
intention was to do away with the second opportunity rule. Issac Joseph v. Senior
Supdt. of Post Offices, Ernakulam, 1982(2) SLR 269: 1983 Lab IC 145.
Where in a case Enquiry Officer holds a charge not proved and the disciplinary
authority holding it proved imposed penalty, claim put forth by the applicant that a
show cause should have been given before imposing penalty. It was held that no such
second cause is requirement of Rule 15(3). N. Mangayarkarasi v. Secretary to
Government (Welfare), Podicherry, 1988(1) SLJ 395 (CAT Mad).
The disciplinary authority has no jurisdiction to drop proceedings before
arriving at final stage of imposing of penalty. Bhagat Singh v. Union of India, 1994(7)
SLR 743 (CAT Cal).
COMMENTARY
SYNOPSIS
Sub-rule (1)
1. Requirements of the rule. ............................................................................................... 401
2. Charge-sheet under Rule 14 - On receipt of reply, minor penalty can be imposed
without following procedure under rule 14 .................................................................... 401
3. Penalty of censure .......................................................................................................... 402
4. Delinquent only entitled to opportunity to make a representation .................................. 402
R. 16] PROCEDURE FOR IMPOSING PENALTIES 401
Sub-rule (1)(a)
1. Requirements of the Rule — (i) Rule 16 provides for the procedure where
minor penalty is to be imposed. The rule requires the Government to inform the official
of the proposal to take action against him and give him a reasonable opportunity of
making such representation as he may wish to make against the proposal. Holding of
enquiry is not mandatory but is in the discretion of the disciplinary authority who may
if necessary hold one. I.D. Gupta v. Delhi Administration, 1973(2) SLR 1. See also Kul
Bhusan Madan v. Union of India, 1994(7) SLR 55 (CAT, New Delhi).
(ii) The only requirement is that officer concerned should be given an adequate
opportunity of making representation that he may desire to make. There is no provision
for examination of witnesses, cross-examination of witnesses and furnishing a copy of
report. The punishment can therefore be imposed after the charge-sheet had been served
on the officer and he had made his representation, if the disciplinary authority considers
that holding an enquiry is not necessary. Shadi Lal Gupta v. State of Punjab, 1973(1)
SCWR 329: AIR 1973 SC 1124: 1973(3) SCR 637: 1973(1) SCC 680: 1973 SLJ 478.
2. Charge-sheet under Rule 14: On receipt of Reply, Minor Penalty can be
Imposed without Following Procedure of Rule 14 — If in the first instance a
memorandum is given under Rule 14 and on receipt of reply by the delinquent the
402 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 16
authority is of the view that only a minor penalty was called for, the authority can
impose the minor penalty without going through the whole procedure of elaborate
enquiry under Rule 14. I.D. Gupta v. Delhi Administration, 1973(2) SLR 1. See also
K.P. Agarwal v. Union of India, 1994(7) SLR 713 (CAT Jaipur).
Even in case of a minor penalty an opportunity has to be given to delinquent
employee to have his say or to file his explanation with respect to charges against him.
Moreover, if charges are factual and if they are denied by delinquent employee, an
enquiry is called for. This is the minimum requirement of the principle of natural justice
which cannot be dispensed with. O.K. Bhardwaj v. Union of India, 2001(9) SCC 180.
3. Penalty of censure— Penalty of censure cannot be equated with a warning
but is one of the minor penalties. State of Madhya Pradesh v. I.A. Qureshi, 1998(9)
SCC 261.
4. Delinquent Only Entitled to Opportunity to Make a Representation — It
is true that the requirement of a reasonable opportunity of making representation
against the proposed imposition of a minor penalty includes an opportunity both against
the alleged guilt and also the quantum of punishment and that it has to be real. This,
does not, however, mean that an elaborate enquiry is to be held. All that is required is
that the delinquent officer must know the case which he has to meet including the
details of the material or evidence on which the case against him is based. It is only an
opportunity to make a representation and not that the delinquent officer is entitled to get
witnesses summoned, cross-examine them and then except a finding. B.D.Gupta v.
State of Haryana, 1970 Lab IC 170; Kalyan Singh v. State of Punjab, 1967 SLR 129.
5. Effective Opportunity of Meeting Allegations be Given by Informing
Allegations Against Him — No doubt, it is not necessary to hold a departmental
enquiry for imposing on a Government servant the punishment of withholding an
increment. But he is clearly entitled to an effective opportunity of making the
allegations on which it is proposed to withhold his increment. Merely giving a notice to
the Government servant saying he is guilty of certain lapse or misconduct and asking
him to show cause against the punishment of withholding increments is not sufficient.
He must be informed of the allegations against him and the material on which they are
based. Lal Audhraj Singh v. State of M.P., 1968 SLR 88: AIR 1967 MP 284.
6. Application of Principles of Natural Justice — Petitioner was asked to
show cause why disciplinary action be not taken against him for being duly intoxicated
near the Bus Station at midnight and behaving in a disorderly manner under the
influence of liquor. He submitted his explanation denying the charges and how he was
manhandled by the Police Officer. The appointing authority without any further enquiry
into the charges barred his increments for three years with cumulative effect.
Government rejected his appeal. Held, the orders cast a stigma on his character. In the
circumstances of the facts of the case, the impugned orders are in violation of principles
of natural justice and cannot be sustained. C. Ramankutty Warrier v. State of Kerala,
1983(1) SLJ 1.
A charge-sheet was filed for misconduct and negligence. Copies of statements
relied upon by the Department were not supplied. No opportunity was given to cross-
R. 16] PROCEDURE FOR IMPOSING PENALTIES 403
examine the witnesses. Punishment of withholding of increments for two years was
awarded. It was held that, though regular inquiry under Rule 14(3) to 14(23) CCS
(CC&A) Rules are not mandatory for minor penalty, yet a finding of guilt can be
arrived at only after an inquiry. Finding was set aside. Joseph Thomas v. Chairman,
Posts & Telegraphs, New Delhi, 1989(5) SLR 362 Delhi.
Where a minor punishment is imposed, the procedure for holding an enquiry
need not be followed unless otherwise desired by the disciplinary authority. But surely
it does not mean that the enquiry is wholly barred or that it is entirely subject to the
pleasure of the disciplinary authority. … ….The duty to give satisfactory reasons for
coming to a decision is a duty of importance which cannot be lawfully disregarded. G.
Sundaram v. General Manager, Disciplinary Authority, Canara Bank, 1999(1) SLR 92
Karnataka.
If the disciplinary authority gives reasons for disagreeing with the findings of
enquiring officer then the Court cannot interfere with those findings unless it comes to
the conclusion that no reasonable man can come to the said finding. Held that there is
no force in the submission of the learned counsel appearing for the delinquent
government servant that before the disciplinary authority proceeds to award
punishment, the delinquent government servant should have been afforded a further
opportunity of hearing. Held further that charges having been framed and the delinquent
government servant having filed his show cause to the set of charges, the regular
enquiry having been held and the enquiring officer having recorded his findings and
thereafter the disciplinary authority having disagreed with the findings by recording the
reasons therefore and ultimately awarding minor punishment of stoppage of one
increment without cumulative effect, there is no procedural irregularity therein nor can
it be said that there has been any violation of principle of natural justice. State of
Rajasthan v. M.C. Saxena, 1998(3) SCC 385: AIR 1998 SC 1150: 1998(1) SLR 787:
1998(1) LLJ 1244: 1998(79) FLR 140: 1998(3) SLJ 10: 1998 Lab IC 1038: 1998(93)
FJR 582: 2000(1) LLN 35.
7. Inviting Comments on Representation made by Delinquent Officer —
When an explanation is received its consideration is a matter solely for the authority
competent to take action. He should not allow his decision to be influenced by any
other person by inviting comments on the explanation. M.L.Gera v. Chief Engineer,
1973(1) SLR 1076: AIR 1973 Punjab 287.
8. Civil Servant”s Right of Access to Preliminary Enquiry Report in
Proceedings Other Than those Involving Major Penalties — A civil servant in
disciplinary proceedings other than those involving the major penalties of dismissal,
removal or reduction in rank is not entitled to be supplied with the copy of the report or
the substance of the adverse findings and the material on which they are based to which
reference was made by the punishing authority to ascertain the facts in order to decide
whether it was a fit case for taking any action and, if so, what action against the officer.
Malvinder Jit Singh v. State of Punjab, 1970 SLR 660 (FB).
9. Enhancement of Punishment, Opportunity to Defend be Given —
Petitioner was awarded of reduction in pay by three stages for three years. After
sometime, a clarification was issued that the reduction of pay will have the effect to
404 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 16
postpone the future increments. Held, since another punishment in an enhanced form
was imposed, the petitioner was entitled to the protection under Article 311(2) of the
Constitution and since he has been denied of an opportunity to defend himself against
the punishment, the order was quashed. G.S. George v. Government of Andhra Pradesh,
1968 SLR 603: AIR 1968 AP 153.
10. Mention of Proposed Punishment in Show Cause Notice — Rule covers
several kinds of minor punishments and it was improper on the part of punishing
authority to have the case decided before the receipt of explanation as to what
punishment was going to be imposed. M.L Gera v. Chief Engineer, 1973(1) SLR 1076:
AIR 1973 Punjab 287.
11. Withholding of Promotion, Procedure be Followed — A punishment by
way of withholding of promotion shall not be imposed unless the officer has been given
adequate opportunity of showing cause against the action proposed to be taken. In such
disciplinary proceedings the Government servant has a right to insist upon the
procedure being strictly followed. High Court of Calcutta v. Amal Kumar Roy, AIR
1962 SC 1704: 1963(1) SCR 437.
12. Recovery of Loss Caused by Negligence from Pay — In view of the
losses sustained by the Government due to petitioner”s negligence, his two months
salary was credited to Government revenue to make good a portion of the loss due to
thefts. Held, it is punishment which could not be inflicted in disregard of the protection
afforded by Article 311(2). Babulal Mekulal v. Principle Govt. Engineering College,
Jabalpur, AIR 1960 MP 294. However recovery as per covenant in service contract can
be made. State of Kerala v. M.C. Joseph, 1975 SLJ 605. See also Kul Bhusan Madan v.
Union of India, 1994(7) SLR 55 (CAT New Delhi).
Recovery of loss from delinquent after disciplinary proceeding and dismissal
from service. Appeal dismissed by Appellate Authority by non-speaking order. Order
of Appellate Authority set aside and remanded for reconsideration. S. Ramanathan v.
Chief Judicial Magistrate, 2001(5) JT 494: 2001(4) SLT 473.
As punishment for charges of misappropriation and negligence, disciplinary
authority directed the stoppage of increments for two years without cumulative effect
and suspension pending enquiry was directed to be treated as service without pay and
the loss caused was also ordered to be recovered from the employee. Held that the
Tribunal had no jurisdiction to interfere with the punishment imposed by the
disciplinary authority as order for recovery of loss caused on account of employee”s
negligence and misconduct which was permissible under Tamil Nadu Civil Services
(Classification, Control and Appeal) Rules. Commissioner of Rural Development v. A.S.
Jagannathan, AIR 1999 SC 3368: 1999(2) SCC 313: 1999(1) LLJ 1083: 1999 Lab IC
2617.
Sub-rule (1)(b)
13. Disciplinary Authority to Give Reasoned Finding Whether an Enquiry
is or is not Necessary — There can be no manner of doubt that where a minor
punishment is sought to be imposed, the procedure of holding an enquiry need not be
followed, unless otherwise desired by the disciplinary authority. But surely it does not
R. 16] PROCEDURE FOR IMPOSING PENALTIES 405
mean that the enquiry is barred or that it is entirely subject to the pleasure of the
disciplinary authority. The clause speaks of the opinion that such enquiry is necessary
implying that the disciplinary authority must apply its mind to the facts and
circumstances of the case as disclosed in the representation of the employee and other
available material and give a reasoned finding whether an enquiry is or is not necessary.
In the absence of such finding, an order imposing the penalty would be invalid and of
no legal consequences unless, of course, it can show that the omission has not resulted
in any material prejudice to the employee. For, cases are conceivable where without the
requisite opinion being there, clause (b) has been substantially complied with. Mansa
Ram v. General Manager, Telecommunications, 1980 SLJ 382: 1980(3) SLR 520.
Since reasons are the links between the materials on which certain conclusions
are based and the actual conclusions and they disclose how the minds is applied to the
subject matter and it excludes the chances to reach arbitrary, whimsical or capricious
decision. It also aids the appellate or revisional authority or the supervisory jurisdiction
of this Court under Article 226 of the Constitution to see whether the authority
concerned acted fairly and justly to meet out justice to the aggrieved person. G.
Sundaram v. General Manager, Disciplinary Authority, Canara Bank, 1999(1) SLR 92
Karnataka.
Sub-rule (1)(d)
15. Order should be a Speaking Order — The order should be a speaking
order so that the employee concerned may know the process of reasoning that led to the
penal action. M.L. Gera v. Chief Engineer, 1973(1) SLR 1076: AIR 1973 Punjab 287;
Harchand Singh v. State of Punjab, 1980(3) SLR 711. It is well settled that in
departmental proceedings, the order of punishment is an order in the nature of quasi
judicial proceedings and it has to be a speaking order. If certain explanation is
406 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 17
furnished by the delinquent officer in reply, the same has to be met with by passing a
speaking order. Deep Chand Sharma v. State of Haryana, 1981(3) SLR 188.
16. Order should Contain Reasons for Imposing Penalty — A penalty can
be imposed upon members of the services only if good and sufficient reasons are
shown. The existence of good and sufficient reasons can only be found out from the
reading of the orders which admittedly do not exist in this case. Order set aside. Ram
Das Chaudhary v. State of Punjab, 1968 SLR 792; Dr. B.K. Talwar v. State of
Haryana, 1970 SLR 732: 1970 Cur LJ 579; State of Punjab v. Dr. Ram Kishan Chopra,
1977(2) SLR 809.
Sub-rule 16(1-A)
17. Admission of Delinquent Officer during Enquiry — If the admissions are
to be taken to be correct, then the admission should be taken as a whole and not only
the parts thereof which are favourable to the prosecution. Satya Prakash Varshney v.
Union of India, 1980(3) SLR 64.
18. Penalty under Rule 16(1-A) only After Following Prescribed Procedure
— Any of the penalties mentioned in Rule 16(1-A) can be imposed only after following
the procedure laid down in sub-rules (3) to (23) of Rule 14. Satya Prakash Varshney v.
Union of India, 1980(3) SLR 64. See also K. Gandhi v. Union of India, 1994(3) SLR
628 (CAT Madras).
R. 17
COMMUNICATION OF ORDERS
17.
¹[Communication of Orders — Orders made by the
disciplinary authority shall be communicated to the Government servant
who shall also be supplied with a copy of its findings on each article of
charge, or where the disciplinary authority is not the inquiring authority,
a statement of the findings of the disciplinary authority together with
brief reasons for its disagreement, if any, with the findings of the
inquiry authority and also a copy of the advice, if any, given by the
Commission, and where the disciplinary authority has not accepted the
advice of the Commission, a brief statement of the reasons for such non-
acceptance.]
COMMENTARY
SYNOPSIS
A distinction has been made regarding the points of time when an order of
dismissal and an order of reversion or suspension becomes effective. In the case of an
order of reversion or suspension, when it goes out of the control of the authority
concerned, that is to say, when it is despatched to the Government servant either by
post or by messenger. This principle is not, however, applicable in the case of an order
of dismissal. When an order of dismissal or removal from service is sent out, it is
effective on the authority concerned, but so far as the Government servant is concerned,
it becomes effective only when he is apprised of it either by oral communication or by
actual service of it upon him. Umashankar Chatterjee v. Union of India, 1982(2) SLJ
368: 1982 SLR 724: 1982 Lab IC 1361.
408 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 18
Mere passing of the order of dismissal would not make it effective unless it was
published and communicated to the concerned officer. State of Punjab v. Amar Singh
Harika, AIR 1966 SC 1313: (1966) 2 SCJ 777: 1966(2) LLJ 188; Rama Kant Banik v.
District School Board, AIR 1969 Calcutta 397; Bansidhar Panigrahi v. State of Orissa,
1975 SLJ 150: 1975 (2) SLR 725: 1975 Lab IC 932.
COMMON PROCEEDINGS
R. 18
COMMENTARY
SYNOPSIS
and not by Lt. Governor. Enquiry Officer has acted without jurisdiction when he took
up common proceedings. Entire proceeding is vitiated and is therefore liable to be
quashed. Ashok Y. Naik v. Administrator of Goa, 1979 SLJ 84: 1978(2) SLR 679.
4. Appointment of Disciplinary Authority — Where appointing authorities
are different of civil servants about whom a joint enquiry is ordered, the Government is
to specify as to who shall be the disciplinary authority for the common purposes of
making the joint enquiry. Krishan Lal Godara v. State of Rajasthan, 1969 SLR 666.
5. Joint Enquiry: Objection to — If a charged officer does not want a joint
trial along with other persons he should take that objection before the Enquiry
Officer/Tribunal. A joint trial of more than one charged officer cannot be held to be bad
unless it is shown that some prejudice was caused to the charged person by virtue of the
joint trial. R. Narasimha Reddy v. State of A.P., 1975(1) SLR 315. See also K.B.
Narayanachari v. Vice President, Council of Scientific and Industrial Research,
1993(8) SLR 634 (CAT Hyderabad).
Where there is inherent lack of jurisdiction to hold joint enquiry, no amount of
acquiescence or consent of parties can confer jurisdiction. Tripura Charan Chatterjee v.
State of West Bengal, 1979(12) SLR 878.
6. Information for Common Proceeding but Enquiry Conducted Separately
— Despite the intimation given to applicant for conducting common proceeding enquiry
done separately, it was held that purpose behind it was to give better opportunity and
there was no violation of natural justice. B.C. Rangarajan v. General Manager,
Ordinance Factory, 1988(1) SLJ 521 (CAT) (SN) (Mad).
COMMENTARY
SYNOPSIS
21. Not reasonably practicable to hold an inquiry in the manner provided in these rules -
Meaning of .................................................................................................................... 424
22. Ambit of consideration by the disciplinary authority - Associating of employee........... 424
23. Whether the conclusion of disciplinary authority open to challenge .............................. 425
24. Whether reasons are to be communicated to the employee ............................................ 427
25. Whether rule authorises to altogether dispense with an enquiry..................................... 427
26. Natural justice and dispensation of enquiry.................................................................... 428
Clause (iii)
27. Interest of of security of State not to suffer on unsubstantial or hyper technical
grounds .......................................................................................................................... 428
28. President/Governor can dispense with enquiry if in the interest of security of State - It
is not expedient to hold it ............................................................................................... 428
29. Satisfaction of President or Governor need not be personal .......................................... 428
30. Satisfaction of the President or Governor is subjective .................................................. 429
31. Termination of service in interest of security of State under Article 310 - Order to
recite President”s satisfaction ......................................................................................... 429
32. Decision of Governor or President that in the interest of the security of State, it is not
expedient to hold an inquiry - Judicial review of .......................................................... 429
33. Decision of review petition before the Supreme Court cannot stand in way of
reinstatement .................................................................................................................. 430
34. Non-consultation with Public Service Commission ....................................................... 430
1
[(2) No such person as aforesaid shall be dismissed or removed or reduced in
rank except after an inquiry in which he has been informed of the charges against him
and given a reasonable opportunity of being heard in respect of those charges 2[* * *]:.
3
[Provided that where it is proposed after such inquiry, to impose upon him any
such penalty, such penalty may be imposed on the basis of the evidence adduced during
such inquiry and it shall not be necessary to give such person any opportunity of
making representation on the penalty proposed:.
Provided further that this clause shall not apply—.
(a) where a person is dismissed or removed or reduced in rank on the
ground of conduct which has led to his conviction on a criminal
charge; or.
(b) where the authority empowered to dismiss or remove a person or
to reduce him in rank is satisfied that for some reason, to be
recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or.
(c) where the President or the Governor, as the case may be, is
satisfied that in the interest of the security of the State it is not
expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is
reasonably practicable to hold such inquiry as is referred to in clause (2), the decision
thereon of the authority empowered to dismiss or remove such person or to reduce him
in rank shall be final.].
Case law on clauses (i), (ii) and (iii) of Rule 19 is given in the notes which follow:
Clause (i)
2. Conviction on Criminal Charge: Meaning of — Conviction on a criminal
charge includes conviction under any law which provides for punishment for an
offence, whether by fine or imprisonment and that no distinction is made by this clause
between crimes involving moral turpitude or other crimes. Sunil Kumar Ghosh v. State
of West Bengal, AIR 1970 Cal 384: 73 Cal WN 627: 1970(1) LLJ 588: 1970 Cri LJ
1225: 1970 Lab IC 1243. [Case Law discussed].
It has been held, with reference to Rule 19, that if the employee is acquitted in
the criminal case on appeal, the disciplinary authority cannot, after the acquittal, reopen
the inquiry. P.P. Kuttuppan v. Senior Superintendent of RMS, 1990(3) SLR 561 (CAT
Ernakulam). See also D.V. Varma v. Superintending Engineer, Hyderabad, Central
Circle, CPWD, 1994(2) SLR 479 (CAT Hyderabad).
1 Substituted by the Constitution (Fifteenth Amendment) Act, 1963, Section 10, for
clause (2) and (3).
2 Certain words omitted by the Constitution (Forty second Amedment) Act, 1976,
Section 44, w.e.f. 03-01-1977.
3 Subtituted by Section 44, ibid., for certain words (w.e.f. 03-01-1977)
414 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 19
the word “consider” and not “determine” because the word “determine” has a much
wider scope. The word “consider” merely connotes that there should be active
application of the mind by the disciplinary authority after considering the entire
circumstances of the case in order to decide the nature and extent of the penalty to be
imposed on the delinquent employee on his conviction on a criminal charge. This
matter can be objectively determined only if the delinquent employee is heard and is
given a chance to satisfy the authority regarding the final orders that may be passed by
the said authority. In other words, the term “consider” postulates consideration of all
the aspects, the pros and cons of the matter after hearing the aggrieved person. Such an
inquiry would be a summary inquiry to be held by the disciplinary authority after
hearing the delinquent employee. It is not at all necessary for the disciplinary authority
to order a fresh departmental inquiry which is dispensed with under Rule 14 of the
Railway Rules of 1968 which incorporates the principle contained in Article 311(2)
proviso (a). This provision confers power on the disciplinary authority to decide
whether in the facts and circumstances of a particular case what penalty, if at all, should
be imposed on the delinquent employee. It is obvious that in considering this matter the
disciplinary authority will have to take into account the entire conduct of the delinquent
employee, the gravity of the misconduct committed by him, the impact which his
misconduct is likely to have on the administration and other extenuating circumstances
or redeeming features, if any, present in the case and so on and so forth. It may be that
the conviction of an accused may be for a trivial offence….. where a stern warning or a
fine would have been sufficient to meet the exigencies of service. It is possible that the
delinquent employee may be found guilty of some technical offence, for instance,
violation of the transport rules or the rules under the Motor Vehicles Act and so on,
where no major penalty may be attracted………… In other words, the position is that
the conviction of the delinquent employee would be taken as sufficient proof of
misconduct and then the authority will have to embark upon a summary inquiry as to
the nature and extent of the penalty to be imposed on the delinquent employee and in
the course of the inquiry if the authority is of the opinion that the offence is too trivial
or of a technical nature it may refuse to impose any penalty inspite of the
conviction……… We must, however, hasten to add that we should not be understood as
laying down that the last part of Rule 14 of the Railway Rules of 1968 contains a
licence to employees convicted of serious offences to insist on reinstatement. The
statutory provision referred to above merely imports a rule of natural justice in
enjoining that before taking final action in the matter the delinquent employee should
be heard and the circumstances of the case may be objectively considered. This is in
keeping with the sense of justice and fair-play. The disciplinary authority has the
undoubted power after hearing the delinquent employee and considering the
circumstances of the case to inflict any major penalty on the delinquent employee
without any further departmental inquiry if the authority is of the opinion that the
employee has been guilty of a serious offence involving moral turpitude and, therefore,
it is not desirable or conducive in the interests of administration to retain such a person
in service.”.Divisional Personnel Officer, Southern Railway v. T.R. Challappan, AIR
1975 SC 2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ
68: 1976(1) LLN 269: 1975(2) SLR 587: 1976 SLJ 8; Jokhan v. Union of India,
1982(1) SLR 352.
416 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 19
The petitioner was originally dismissed under Rule 19(i) because of his
conviction under Sections 500 and 501, Indian Penal Code. In appeal, it was modified
to one of compulsory retirement. Admittedly, no notice was issued before passing the
order of dismissal. Evidently, that order was passed in view of the conviction of the
petitioner by the criminal court, following the judgements Divisional Personnel Officer,
Southern Railway v. T.R. Challappan, AIR 1975 SC 2216: 1976(1) SCR 783: 1976(3)
SCC 190: 1975 Lab IC 1598: 1976(1) LLJ 68: 1976(1) LLN 269: 1975(2) SLR 587:
1976 SLJ 8; Jokhan v. Union of India, 1982(1) SLR 352, it was held, that since no
summary enquiry was held and opportunity was not given to the delinquent employee,
the order of dismissal and the order of compulsory retirement and the subsequent order
refusing to set aside that order to be set aside. It was left open to the authorities, if they
still want, to take action against the petitioner according to law. T. Jayant v. Union of
India, 1980 SLJ 438: 1980(2) SLR 507: 1981(1) SLR 226. In view of the enunciation
by the Supreme Court in T.R. Challappan”s case (supra) of the requirement of affording
an opportunity of hearing before the services are terminated in the wake of an order of
conviction, while considering Rule 14 of the Railway Servants (Discipline and Appeal)
Rules, 1968 which is identical with Rule 9 of the Central Civil Services (Classification,
Control & Appeal) Rules, 1965, the impugned order dismissing the petitioner was
quashed. Sardara Singh v. Administration of Union Territory, Chandigarh, 1980(3)
SLR 702; Som Dutt v. Union of India, 1981(1) SLJ 5. See also D. Krishnamoorthy v.
Union of India, 1994(8) SLR 474 (CAT Madras).
An order imposing penalty to the Government servant under Rule 19(i) without
giving any opportunity of hearing to him would be in violation of the principles of
natural justice and the same would be void. Dost Mohammad v. Union of India, 1981(3)
SLR 274 All; Kirti Kumar D. Vyas v. State of Gujarat, 1981(1) SLR 556: 1983 Lab IC 67.
Departmental inquiry may be dispensed with where the employee has been
convicted of grievous hurt (Section 326, IPC) by a Criminal Court. K. Ramababu v.
Chief Staff Officer, 1988(5) SLR 392.
Where removal of delinquent employee is ordered under Rule 19, CCS (CCA)
Rules, 1965 (after arrest and conviction under Section 75, Madras City Police Act for
using abusive language) only the conduct that led to the conviction can be made the
basis of the order. Other circumstances cannot be taken into account. V. Ramachandran
v. Director, BCG Vaccine Laboratory, 1989(6) SLR 444 (CAT, Madras).
Disciplinary authority has power to impose any penalty under Rule 19(i), CCS
(CCA) Rules on the ground of conduct which has led to conviction on a criminal charge
even if an appeal against the conviction is pending. The fact that sentence was
suspended and delinquent released on bail is immaterial. Om Prakash Narang v. Union
of India, 1989(2) SLR 476, 484, para 14 (CAT Delhi) (FB) overruling CAT v. Union of
India, ATR 1987(1) CAT 258.
R. 19] PROCEDURE FOR IMPOSING PENALTIES 417
But in another case where conviction was ordered under Section 498-A of
Penal Code but convict was released on probation. Held that such release on probation
cannot preclude department from taking disciplinary action for misconduct leading to
418 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 19
the offence which resulted in conviction. Vincent Varghese v. State Bank of India,
1995(5) SLR 73 Ker (DB).
A person may be removed for an unbecoming act. Even if it was committed
outside office hours. Md. Zaboor Ahmed Rahim v. Union of India, 1988(2) SLJ 339
(CAT Pat).
10. Probation of Offenders Act: Effect of Benefit under Section 12 — An
order of release on probation comes into existence only after the accused is found guilty
and is convicted of the offence. Thus the conviction of the accused or the finding of the
court that he is guilty cannot be washed out at all because that is the sine qua non for
the order of release on probation of the offender. The order of the release on probation
is merely in substitution of the sentence to be imposed by the Court under Sections 3, 4
or 6 of the Act, the stigma continues and the finding of the misconduct resulting in
conviction must be treated to be a conclusive proof. The order of the Magistrate
releasing the offender on probation does not obliterate the stigma of conviction.
Therefore, it cannot be said that Section 12 of the Act contemplates an automatic
disqualification attaching to a conviction and obliteration of the criminal misconduct of
the accused. Divisional Personnel Officer, Southern Railway v. T.R. Challappan, AIR
1975 SC 2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ
68: 1976(1) LLN 269: 1975(2) SLR 587: 1976 SLJ 8.
Where the official was convicted but was given the benefit under the provisions
of Section 4(1) of the Act was not given any opportunity of being heard before the
impugned order was passed, nor any enquiry was held, the impugned order of penalty
was quashed. Jile Singh v. Sub-Divisional Officer, Telegraphs, 1982(1) SLJ 578:
1982(2) SLR 225.
Where a Government servant is convicted, but released on probation
disciplinary authority can remove him from service. But before doing so, he must
consider the conduct that led to conviction. Failure to do so vitiates the order of
removal. P.Selvaraj v. Assistant Engineer, Telephones, 1990(3) SLR 223 (CAT
Madras).
Where a person is convicted by a criminal court but released by the court on
probation, action under Rule 19(1) CCS (CCA) Rules, 1965 for his removal, after
considering his explanation is permissible. Ratti v. Union of India, 1990(3) SLR 351
(CAT Jabalpur).
Release of delinquent on probation of good conduct does not exonerate him
from the departmental punishment that can be imposed on conviction of a criminal
charge. Union of India v. Bakshi Ram, 1990(2) ATJ 121 (SC). See also Additional
D.I.G. of Police, Hyderabad v. P.R.K. Mohan, 1997(11) SCC 571: 1998 SCC(Cr) 206.
For the purpose of Rule 19(1), CCS (CCA) Rules, dismissal is competent, where the
employee is released by the criminal court on probation. P. Anand Raj v. Union of
India, 1989(4) SLJ (CAT) 10: 1990(2) ATJ 384 (CAT New Bombay).
In Section 12, Probation Act, the term “suffer disqualification, if any, attaching
to a conviction for an offence under such law” does not bar dismissal. Action under the
R. 19] PROCEDURE FOR IMPOSING PENALTIES 419
Probation Act does not mean that the conviction has been set aside. Ratti alias Ratiram
v. Union of India, 1990(13) ATC 71 (Jabalpur).
In a case decided by the CAT Madras, applicant had been convicted under
Section 323, Indian Penal Code and was released after due admonition. Taking into
account the conduct which had led to his conviction, the disciplinary authority, after
inquiry under Rule 19(1), CCS etc. Rules, awarded the penalty of reduction by 3 stages
for 3 years. It was held that there was nothing illegal in the course adopted. P.
Vaidyanath Swamy v. Secretary to Government, Education Department, 1989(6) SLR
459 (CAT Madras). [The Tribunal held in the above case that it was not correct to argue
that when a person is released after due admonition, there is no “conviction.”]
Petitioner was convicted of bigamy but released under the Probation of
Offenders Act. The disciplinary authority imposed on the petitioner a penalty of
reduction of pay for 2 years without cumulative effect. The appellant authority
enhanced it without reasons to five years” reduction. It was held that while the
enhancement was illegal, the penalty of 2 years” reduction should stand. Release on
probation does not come in the way. Sudhir Chandra Jha v. Union of India, 1990(6)
SLR 166 (CAT Patna).
11. Probation of Offenders Act: Object of Section 4 and 12 — It is manifest
from the language of Section 4 of the Act that the provisions thereof come into play
only when a person is found guilty of having committed an offence. The Court records
a conviction in consonance with the modern policy of penological reforms and instead
of sentencing such a convict at once to imprisonment, he is released on probation on his
entering into a bond to appear and receive sentence during the period of probation and
in the mean time he has to keep peace and be of good behaviour. If such a convict
violates the conditions of the good behaviour, he can be sentenced to imprisonment.
The object of this beneficial legislation is to provide an opportunity to persons who are
not habitual offenders and are not guilty of heinous crimes to improve themselves
instead of keeping them in jail and turning them into hardened criminals.
The object of Section 12 of the Act is to remove disqualification attaching to a
conviction of an offence so that if such a person seeks to lead a normal and useful life,
the factum of conviction does not stand in his way and prove a disqualification in
obtaining a job or for being elected to the elective offices. These instances can be
multiplied. However, from the scheme of the Act and the language of Section 12, it
cannot be spelled out that release on probation exonerates a person of the charges of
misconduct levelled against him. What Section 12 of the Act has in view is an
automatic removal of disqualification flowing from conviction and not an obliteration
of conduct of the accused. Departmental proceedings are not taken because the man is
convicted. They are directed against the original misconduct of the delinquent. Section
12 of the Act does not afford immunity against departmental proceedings for the
original misconduct. It is that misconduct which provides the basis for punishment and
not the conviction. Kesar Singh v. Union of India, 1981(3) SLR 415.
An employee in a drunken state assaulting his superior in office, is a grave
misconduct. For such misbehaviour the employee was convicted but released on
probation. Held that release on probation means misconduct was not serious and such
420 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 19
employee could continue in service. Babulal v. State of Rajasthan, 2002(1) SLR 599
Raj (DB).
In another case conviction was ordered under Section 498-A of Penal Code but
convict was released on probation. Held that such release on probation cannot preclude
department from taking disciplinary action for misconduct leading to the offence which
resulted in conviction. Vincent Varghese v. State Bank of India, 1995(5) SLR 73
Ker (DB).
12. Power of appellate criminal court — Delinquent convicted under Section
19(n) read with Section 16(2) of CRPF Act, 1949 being under influence of liquor. Held
that the Appellate court hearing the appeal against the order of conviction has no power
to direct that conviction was not to interfere with service career of the convict.
Commandant 20 BN. ITB Police v. Sanjay Binjoa, AIR 2001 SC 2058: 2001(5) SCC
317: 2001 AIRSCW 1858: 2001 All LJ 1126: 2001(2) AllCriLR 668: 2001 CalCriLR
385: 2001(2) ChandCriC 207: 2001(2) Crimes 277: 2001(2) ECC 300: 2001 Mad LJ
(Cri) 867: 2001(20) OCR 755: 2001(2) RCR 798: 2001(5) SLR 457.
Allegation against a member of PAC of commission of revolt and Supreme
Court maintaining the conviction under some of the provisions and setting aside the
conviction under remaining provisions. Prayer for ameliorative relief of restricting the
disciplinary proceedings against them. Held that such relief can not be granted but
liberty granted to the appellant to approach State Government for securing such relief.
Krishna Gopal Singh v. State of Uttar Pradesh, AIR 2000 SC 3616: 2000 SCC(Cr) 93.
13. Suspension of sentence— Clause (a) of Article 311 (2) speaks of "conduct
which has led his conviction on a criminal charge". It does not speak of sentence or
punishment awarded. Merely because the sentence is suspended and/or the accused is
released on bail, the conviction does not cease to be operative. Deputy Director of
Collegiate Education (Administration) v. S. Nagoor Meera, AIR 1995 SC 1364: 1995(2)
SCR 308: 1995(3) SCC 377: 1995(2) SLR 379: 1995(29) ATC 574: 1995(2) SLJ 89:
1995 Lab IC 1615.
14. Set aside of conviction — The more appropriate course in all such cases is
to take action under clause (a) of the second proviso to Article 311(2) once a
government servant is convicted of a criminal charge and not to wait for the appeal or
revision, as the case may be. If, however, the government servant-accused is acquitted
on appeal or other proceeding, the order can always be revised and if the government
servant is reinstated, he will be entitled to all the benefits to which he would have been
entitled to had he continued in service. The other course suggested, viz., to wait till the
appeal, revision and other remedies are over, would not be advisable since it would
mean continuing in service a person who has been convicted of a serious offence by a
criminal court. Deputy Director of Collegiate Education (Administration) v. S. Nagoor
Meera, AIR 1995 SC 1364: 1995(2) SCR 308: 1995(3) SCC 377: 1995(2) SLR 379:
1995(29) ATC 574: 1995(2) SLJ 89: 1995 Lab IC 1615.
Order of dismissal passed on account of the conviction but order of conviction
set aside by the Supreme Court. Held that employee is entitled to reinstatement in
service with full back wages. Sat Pal v. Chief of the Army Staff, 2002(1) SLR 37Delhi.
R. 19] PROCEDURE FOR IMPOSING PENALTIES 421
law that strict rules of evidence are not applicable to departmental enquiries. Before the
Enquiry Officer, the statements of both the ladies were recorded. He appreciated the
evidence in the light of their earlier statements made in the preliminary enquiry. In this
view of the matter, it is not correct to say that there was no evidence before the enquiry
officer. State of Tamil Nadu v. M.A. Waheed Khan, 1998(8) SCC 723: 1999(3) LLJ 710.
16. Back wages — In case of acquittal, grant of consequential benefits with all
back-wages etc. cannot be as a matter of course as it would be deleterious to the
maintenance of the discipline if a person suspended on valid considerations is given full
back wages as a matter of course, on his acquittal. In such case the disciplinary
authority may enquire into misconduct unless, the self-same conduct was subject of
charge and on trial the acquittal was recorded on a positive finding that the accused did
not commit the offence at all and acquittal is not given on benefit of doubt. Krishnakant
Raghunath Bibhavnekar v. State of Maharashtra, AIR 1997 SC 1434: 1997(3) SCC
636: 1997(1) LLJ 1190: 1997(2) SLR 396: 1997(2) LLN 602: 1997(2) SLJ 166: 1997(1)
SCJ 597: 1997 Lab IC 1538 .
Order of termination passed on account of conviction u/s 302 & 34 of IPC
which was later on set aside and reinstatement with continuity of services was ordered.
In regard to back wages it was held that the employee himself was disabled to render
service during the period of incarceration and therefore back wages were rightly denied.
Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board,
Himmatnager, AIR 1997 SC 1802: 1996(11) SCC 603: 1997(1) SLR 14: 1997(2) LLN
979: 1997(2) SLJ 38: 1997(2) LLJ 683: 1997(91) FJR 53.
One of the delinquents granted back wages while passing the consequential
order for reinstatement while the other delinquent denied back wages on flimsy
grounds. Held that in the absence of very relevant and exceptional circumstances, the
consequential order should also be of similar import in both the cases therefore denial
of back wages by Tribunal is improper. Ramesh Chander v. Delhi Administration,
1996(10) SCC 409: 1996(3) SLJ 124: 1996(5) SLR 166: 1996(74) FLR 2235: 1996(6)
AD(SC) 316: 1997(1) UJ 97: 1997(3) LLJ 509.
17. Fresh Departmental Inquiry: Whether Necessary — It is not at all
necessary for the disciplinary authority to order a fresh departmental enquiry when a
Government servant has been convicted on a criminal charge. The conviction of the
delinquent employee would be taken as sufficient proof of misconduct. The disciplinary
authority will embark upon a summary inquiry as to the nature and extent of the penalty
to be imposed on the delinquent employee after hearing the delinquent employee.
Divisional Personnel Officer, Southern Railway v. T.R. Challappan, AIR 1975 SC
2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ 68: 1976(1)
LLN 269: 1975(2) SLR 587: 1976 SLJ 8.
18. Natural Justice: Violation of — Imposition of penalty without giving
opportunity to delinquent officer to explain his position is in violation of principles of
natural justice. Divisional Personnel Officer, Southern Railway v. T.R. Challappan,
AIR 1975 SC 2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1)
LLJ 68: 1976(1) LLN 269: 1975(2) SLR 587: 1976 SLJ 8; T. Jayant v. Union of India,
1980 SLJ 438: 1980(2) SLR 507: 1981(1) SLR 226; Sardara Singh v. Administration of
R. 19] PROCEDURE FOR IMPOSING PENALTIES 423
Union Territory, Chandigarh, 1980(3) SLR 702; Som Dutt v. Union of India,
1981(1) SLJ 5.
Rules of natural justice require that a party against whom an allegation is being
inquired into should be given a hearing and not condemned unheard. As to what are the
rules of natural justice to be followed in a particular case would depend upon the
circumstances in each case and must also deemed on the provisions of law under which
the charges are being inquired into in the disciplinary proceedings. Uttar Pradesh Co-
operative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753:
1999(1) SCC 741: 1999(1) CLT 134(SC): 1999(2) SLR 576: 1999(1) LLJ 633: 1999(1)
LLN 1081: 1999(3) SLJ 124.
In one case, right through, the delinquent officer had entertained a doubt about
the impartiality of the enquiry to be conducted by the enquiry officer, when he made a
representation at the earliest, requesting to change the enquiry officer, the authorities
should have acceded to the request and appointed another enquiry officer, other than the
one whose objectivity was doubted. Unfortunately, that was not done. Even after the
Director General had given an opportunity to the delinquent to participate in the
enquiry, the enquiry officer obviously was expected to recall the ex-parte order and
given the delinquent an opportunity to cross-examine the witnesses already examined
and to adduce his evidence in rebuttal. However, the enquiry officer did not adopt the
said procedure which would have been just, fair and reasonable. Under these
circumstances, it was held to be a clear case that the delinquent had not been afforded a
fair opportunity, much less a reasonable opportunity to defend himself. That has
resulted in violation of the principles of natural justice and fair play offending Arts. 41,
21 and 311(2) of the Constitution. The orders of dismissal as confirmed by the appellate
authority were accordingly quashed. Indrani Bai v. Union of India, 1994 (2) SCC 256:
1994(3) SCR 608: 1994(27) ATC 755: 1994(2) UJ 431: 1994(2) SLR 672: 1994(69)
FLR 94: 1994(2) LLN 391: 1995(1) LLJ 431.
19. Combined Effect of Rule 10(2)(b) and Rule 19(i) — The combined effect
of Rule 10(2)(b) and Rule 19(i) is that as soon as it is brought to the notice of the
appointing authority that the Government servant has been convicted of an offence
sentenced to an imprisonment of the description mentioned in Rule 10(2)(b), he may be
forthwith dismissed from service or shall be deemed to have been under suspension by
an order of the appointing authority with effect from the date of conviction. Union of
India v. Susanta Kumar Mukherjee, 1977(1) SLR 334 Cal.
Clause (ii)
20. Dispensing with enquiry — Dispensation of a regular enquiry is
permissible when the authority is satisfied from the materials placed before him that it
is not reasonably practicable to hold a departmental enquiry. It is incumbent on the
authority to show that the satisfaction is drawn for adequate reasons and not the
outcome of whim and caprice of the concerned authority. Atul Chandra Das v. Abhijit
Kumar Sinha Kashyap, 2002(3) SLR 751 Gau.
The power to dismiss an employee by dispensing with an enquiry is not be
exercised so as to circumvent the prescribed rules. The satisfaction as to whether the
424 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 19
facts exist to justify dispensing with enquiry has to be of the disciplinary authority.
Where two views are possible as to whether holding of an enquiry would have been
proper or not, it would not be within the domain of the Court to substitute its view for
that of the disciplinary authority as if the Court is sitting as an appellate authority over
the disciplinary authority. The contemporaneous circumstances can be duly taken note
of in arriving at a decision whether to dispense with an enquiry or not. What the High
Court was required to do was to see whether there was any scope for judicial review of
the disciplinary authority”s order dispensing with enquiry. Indian Railway Construction
Co. Ltd. v. Ajay Kumar, 2003(4) SCC 579: 2003(2) SLR 639: 2003(2) LLJ 150. See
also Kendriya Vidyalaya Sangathan v. S.C. Sharma, 2005 (2) SCC 363: 2005 (2) SLR 1
(SC).
1977 SLJ 69: 1977(2) SLR 127, said that: “It could, therefore, be reasonable to interpret
the concluding part of the Rule in context of clause (ii) of it to imply an obligation to
consider the material objectively associating the delinquent with the process, in so far
as such an association is reasonably practicable”.
Division Bench of Delhi High Court in Satyavir Singh v. Union of India, 1982
Lab IC 663, did not agree with this view. A Division Bench of Karnataka High Court in
T.K. Veerangaiah v. State of Karnataka, 1981(3) SLR 87, did not agree with the views
of Allahabad and Delhi High Court in Union of India v. Rajendra Prasad Srivastava,
1977 (2) SLR 81 All and R.K. Misra v. General Manager, Northern Railway, 1977 SLJ
69: 1977(2) SLR 127 and held that the Supreme Court decision in Divisional Personnel
Officer, Southern Railway v. T.R. Challappan, AIR 1975 SC 2216: 1976(1) SCR 783:
1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ 68: 1976(1) LLN 269: 1975(2) SLR
587: 1976 SLJ 8 laid down in the law only in regard to the cases falling under the first
category and the said decision does not govern the falling under the second category.
Where the departmental inquiry has been dispensed with, and, against the final
order (removal and dismissal), there is an appeal, the appellate authority must make a
sincere effort to find out whether at that stage, it is not reasonably, practicable to hold
the inquiry. Mere speculation that some witnesses might have died or retired, is not
enough. Other witnesses can still be summoned. Ekrajul Khan v. Union of India,
1990(13) ATC 456 (CAT Patna).
Even where the departmental inquiry has been dispensed with under Article
311(2) of the Constitution second proviso, the employee can file a departmental appeal
under CCS (CC&A) Rules, 1965 against the order of removal or dismissal. Satyavir
Singh v. Union of India, 1985(2) Supp SCR 791: AIR 1986 SC 555: 1985(4) SCC 252:
1986 Lab IC 1: 1986(1) SLR 255: 1986(52) FLR 62: 1986(1) SLJ 1: 1986(1) ATR 78:
1986 SCC (Lab) 1: 1986(4) ELJ (LS) 53: V. Kesavan Kutty v. Union of India, 1990(7)
SLR 571, 584, 585, para 28 (CAT Hyderabad).
A perusal of the dismissal order indicated that there was no mention of the
reasons required to be recorded by the authority in writing to permit exercise of the
power under proviso (b) to clause (2) of Article 311. There was also no other material
produced to show that the requisite reasons were recorded by that authority in writing
elsewhere. In such a situation, it was held that the Tribunal rightly reached the
conclusion that the power to dispense with the inquiry was not available. But the
quashing of the dismissal orders does not deprive the appellant of the authority to hold
an inquiry into the alleged misconduct and to take the necessary consequential actions
depending on the outcome of that inquiry. State of Orissa v. Dinabandhu Baheta,
1997(10) SCC 383: 1998(2) LLJ 107: 1998(3) LLN 577; See also Chandigarh
Administration, Union Territory, Chandigarh v. Ajay Manchanda, AIR 1996 SC 3152:
1996(3) SCC 753: 1996 Lab IC 1267: 1996(2) SLR 673: 1996(73) FLR 1192: 1996(2)
LLJ 675: 1996(2) LLN 243.
23. Whether the Conclusion of Disciplinary Authority Open to Challenge
— Clause (3) of Article 311, it may be noticed, declared that where a question arises
whether it is reasonably practicable to hold an inquiry as contemplated by Clause (2),
the decision of the authority empowered to dismiss such person shall be final on that
426 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 19
question. Union Territory, Chandigarh v. Mohinder Singh, AIR 1997 SC 1201: 1997(2)
SCR 71: 1997(3) SCC 68: 1997(1) LLJ 826: 1997(1) SLR 707: 1997(2) LLN 70:
1997(76) FLR 289: 1997(2) SCJ 134: 1997 Lab IC 1493.
Once the authority has properly applied the provision the conclusion of fact
that it was not reasonably practicable to hold an inquiry was final in view of clause (3)
of Article 311 of the Constitution. The satisfaction of the authority must be indicated
by recording “some reason” which apparently should have a nexus to the practicability
or otherwise of holding an enquiry. If that has been done, the constitutional prescription
would stand satisfied. The sufficiency of the material on which such satisfaction has
been arrived at or the weight or cogency of those reasons, if they are germane to the
issue are not matters for the court to consider, but for the empowered authority to be
satisfied about it.
A challenge to the satisfaction or decision of not holding an enquiry can
possibly be raised only if both the letter and the spirit of the law are violated by the
non-recording of any reason whatsoever. Secondly, such a decision can perhaps be
successfully assailed only if it is clearly established that the reason recorded by the
empowered authority are not at all germane to the issue and in fact are wholly
extraneous thereto. Lastly, the exercise of the power under Article 311(2)(b) of the
Constitution could obviously be assailed on the grounds of established mala fide which
would then render the action is a fraud on the power granted by the constitution. R.K.
Misra v. General Manager, Northern Railway, 1977 SLJ 69: 1977(2) SLR 127; Boota
Ram v. State of Punjab, 1980(2) SLR 185.
The rule envisages the satisfaction of the Disciplinary Authority, and as such,
the Court would not be entitled to substitute its own judgement in order to ascertain
whether or not it was reasonably practicable to hold an enquiry. But where the
Disciplinary Authority has proceeded on irrelevant considerations or has failed to take
relevant considerations into account, or has come to a decision which a reasonable
person could not arrive at, the decision of the Disciplinary Authority would be open to
challenge. Virendra Prasad Mishra v. Union of India, 1982(2) SLR 3 Patna.
The disciplinary authority taking view that it was not reasonably practicable to
hold inquiry as the witnesses would not come forward freely to depose against the
delinquent. Held that the order of disciplinary authority on the question of practicability
to hold the inquiry is final. Chandigarh Administration v. Gurdit Singh, 1997(10) SCC
430: 1998(4) JT 253: 1998(79) FLR 750.
In one case there was a failure on the part of the Authority concerned in
exercise of power under Rule 19(ii) of the CCA Rules as the order did not contain
reasons in writing, it was held by Supreme Court that it would not be appropriate for
the Court to interfere with the impugned order in exercise of its jurisdiction under
Article 136 of the Constitution of India. Prabhu Lal Sharma v. Union of India, 2001
Supp (1) JT 584: 2001(6) Supreme 592: 2001(5) SLT 128.
The Superintendent of Police, Intelligence, had reported that the employee-sub
inspector “is a terror in the area” and, more important, in his very presence, the
respondent “intimidated the complainant Shri Ranjit Singh who appeared to be visibly
R. 19] PROCEDURE FOR IMPOSING PENALTIES 427
terrified of this Sub Inspector”. It was also reported that the other persons who were
arrested with Ranjit Singh, and who were present there, immediately left his office
terrified by the threats held out by the respondent. In such a situation — and keeping in
view that all this was happening in the year 1991 in the State of Punjab — it was held
that the Senior Superintendent of Police cannot be said to be not justified in holding
that it is not reasonably practicable to hold an inquiry against the respondent. Union
Territory, Chandigarh v. Mohinder Singh, AIR 1997 SC 1201: 1997(2) SCR 71:
1997(3) SCC 68: 1997(1) LLJ 826: 1997(1) SLR 707: 1997(2) LLN 70: 1997(76) FLR
289: 1997(2) SCJ 134: 1997 Lab IC 1493.
In another case there was no mention of the reasons required to be recorded by
the authority in writing to permit exercise of the power under proviso (b) to clause (2)
of Article 311. There was no other material produced to show that the requisite reasons
were recorded by that authority in writing elsewhere. In such a situation, it was held
that the conclusion reached by the Tribunal that this power was not available to
dispense with the inquiry cannot be faulted. State of Orissa v. Dinabandhu Baheta,
1997(10) SCC 383: 1998(2) LLJ 107: 1998(3) LLN 577.
24. Whether Reasons are to be Communicated to the Employee — The
requirement of the rule is of recording the reasons and not of communicating the same
to the employee. R.K. Misra v. General Manager, Northern Railway, 1977 SLJ 69:
1977(2) SLR 127. In Boota Ram v. State of Punjab, 1980(2) SLR 185, It was held that,
“There is no legal obligation on the respondent State to serve a copy of the reasons for
dispensing with the enquiry on the delinquent employee. No adverse consequences
would, therefore, flow from the non-delivery of these reasons to him if they have
otherwise been duly recorded in accordance with law. It is, of course, elementary that
the said reasons cannot be withheld from the employee and if a proper demand
therefore is made by him, then access thereto is not denied”.
25. Whether Rule Authorises to Altogether Dispense with an Inquiry —
Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968, is similar to
the present rule Thaker, J., while interpreting the rule in Bholanath Khanna v. Union of
India, 1975(1) SLR 277 Guj, held that the rule merely conceives of a situation where
the disciplinary authority may not consider it reasonably practicable to hold an inquiry
and provides for a solution in that behalf. And the solution provided is that if it is not
feasible to hold an enquiry in the prescribed manner, a special procedure as may be
deemed fit by the authority concerned may be adopted by it. The bare minimum that he
is obliged to follow is to appraise the Railway/Government servant concerned of the
imputations or fault attributed to him and to require him to submit his explanation or
comments in regard to the imputations and as regards as the penalty proposed. He
cannot dispense with inquiry altogether. A Division Bench of Delhi High Court in
Satyavir Singh v. Union of India, 1982 Lab IC 663, held that clause (b) to proviso to
Article 311(2) of the Constitution depends upon the satisfaction of the authority
concerned that for some reasons to be recorded by that authority in writing, it is not
reasonably practicable to hold such inquiry. Since reasons have to be an objective
satisfaction the reasons can be examined by a court of law, but, of course, to the extent
permissible. There is no express or implied requirement of law that the reasons have to
be communicated to the aggrieved employee.
428 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 19
Clause (iii)
27. Interest of Security of State not to Suffer on Unsubstantial or Hyper-
technical Grounds — No doubt Article 311(2) is intended to afford a sense of security
to Government servants covered by sub-article (1) and the safeguards provided by sub-
article (2) are mandatory. But clause (c) of the proviso to this sub-article which is
designed to safeguard the larger interest of the security of the State cannot be ignored
or considered less important when construing sub-article (2). The interest of the
security of the State should not be allowed to suffer by invalidating the order on
unsubstantial or hyper-technical grounds which do not have the effect of defeating the
essential purpose of the constitutional safeguards of individual Government servant.
B.C. Das v. State of Assam, 1971(1) SCWR 793: AIR 1971 SC 2004: 1971 Supp SCR
477: 1971(2) SCC 168: 1971(2) SLR 756: 1971 Lab IC 1182: 1971(1) LLJ 576.
the State, the Court can hold that the satisfaction of the President or the Governor
which is required for passing such an order has been vitiated by wholly extraneous or
irrelevant considerations. Union of India v. Balbir Singh, 1998(5) SCC 216: 1998 AIR
SC 2043: 1998(4) SLR 351: 1998(79) FLR 694: 1998(3) SLJ 202: 1999(1) LLJ 735:
1998(77) ECR 11: 1998 Lab IC 1898: 1998(3) LLN 599: 2000(1) LLJ 279: 1999(95)
FJR 145.
33. Decision of Review Petition Before the Supreme Court cannot Stand in
Way of Reinstatement — K.S. Dhardathan v. Collector of Customs, 1988(1) SLJ 570
(CAT Mad).
COMMENTARY
SYNOPSIS
15. Requirement of “Information” under proviso to sub-rule (1) of Rule20 ........................ 436
1. Deputation: Meaning of— The word “depute” which is a basic word from
which the noun “deputation” emanates means which the noun “deputation” emanates
means appoint or instructs someone to perform a task for which one is responsible. If
the word “deputation” itself is to be used as a noun, it means a person appointed to act
in an official capacity or a representative of the another official. Therefore, it will be
seen that the word “deputation” has a special meaning in the service jurisprudence and
is not used in the rules in its contrary dictionary parlance. M.V. Girija v. High Court of
Madras, 2002(3) SLR 397 Mad (DB).
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 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. State
of Punjab v. Inder Singh, AIR 1998 SC 7: 1997 Supp (4) SCR 425: 1997(8) SCC 372:
1998(78) FLR 272: 1997(5) SLR 789: 1998(2) SLJ 113: 1998 Lab IC 133: 1998(1)
LLN 74.
2. Employee on Deputation, His Legal Position — 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. Umapati Choudhary v. State of Bihar, AIR 1999 SC 1948: 1999(4) SCC 659:
1999(3) JT 627: 1999 LIC 1979: 1999(2) SLR 606 (SC); See also State of Punjab v.
Inder Singh, 1997(8) SCC 372: AIR 1998 SC 7
An employee who is on deputation has no right to be absorbed in the service
where he is working on deputation. However, in some cases it may depend upon
434 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 21
Joginder Singh v. State of Punjab, 1969 Cur LJ 58. The employee validly repatriated on
abolition of posts in borrowing department, can not claim to continue in service. Ram
Ganga Command Area Development Authority v. Sheetal Kumar Vaish, 2003 (2) SLR
766 SC.
6. Recall from Foreign Service before Specified Period, Without Consent of
Officer — State Government having lent the services of its officer on deputation to
foreign service for a specified period can, before the expiry of the aforesaid period,
legally recall the officer unilaterally without the consent of the officer concerned. Fateh
Singh Chugha v. State of Punjab, AIR 1970 Pun 315; Sohan Singh v. State of Punjab,
ILR (1970) 1 Pun 468: AIR 1970 Pun 322 (FB); Palikoith Shayama Prasad v. Chief
Commr. Andaman Nicobar Islands, 1969 Lab IC 721: 73 Cal WN 939: 1970 SLR 161.
7. Reversion when on Deputation by Parent Department — A Government
servant on deputation can be reverted after being recalled. The parent Government has
no right to pass orders of his reversion and direct the other Government to post him on
the lower post. Sudershan Sood v. State of Punjab, 1969 Cur LJ 846: 1969 SLR 715.
8. Reversions to Parent Office by Borrowing Authority Without Stigma —
The petitioner was on deputation. He was sent back to his parent officer as he lost
confidence and was not found to be suitable for the job. There was nothing in the order
whereby any stigma was cast upon him. Held, the impugned order cannot be said to
entail evil consequences and the lack of an enquiry would not stamp it with infirmity or
illegality. Nau Nihal Singh v. Union of India, 1971 Lab IC 1267: 1971(1) SLR 566
Delhi; S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184:
1976(1) SCC 236: 1975 Lab IC 1748: 1975(2) SLR 740: 1976 SLJ 271; Kalam Dass v.
Chief Electoral Officer, 1977(1) SLR 726.
The reversion to the parent department does not entail any punishment to a
Government servant. The provisions of Article 311 are not attracted. Gita Ram Gupta v.
Union of India, 1979 SLJ 727.
9. Reversion by Borrowing Authority as Punishment — The appellant was
reverted neither because of temporary post was abolished nor because he was found
unsuitable to continue. The parent department also did not want him back. The order of
reversion was passed in the nature of punishment. Held Article 311 will be attracted.
K.H. Phadnis v. State of Maharashtra, 1971(1) SCWR 532: AIR 1971 SC 998: 1971
Supp SCR 118: 1971(1) SCC 790: 1971(2) SLR 345: 1971 Lab IC 721: 1973(1) SCJ
420; C. Thiravian Pillai v. State of Kerala, 1976(2) SLR 395.
10. Appointment Temporarily which could be Terminated by 15 days
Notice: Whether Notice Necessary for Reversion to Parent Department —
Respondent, a permanent employee of office of L.R. Punjab was appointed as
temporary A.S.O. in Government of India on terms and conditions that his services may
be terminated on 15 day”s notice. Subsequently he was appointed S.O. again in a
temporary capacity. By an Officer order he was asked to hand over charge of his office
and report for duty to L.R., Punjab immediately. The 15 days prior notice was not
required as neither such term appears from the letter of appointment as S.O. nor there is
anything to show that terms and conditions as A.S.O. would continue to apply to him as
436 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 21
S.O. Union of India v. Agya Ram, AIR 1977 SC 585: 1977(1) SCC 130: 1977 Lab IC
234: 1977(2) LLN 117: 1977(1) LLN 210: 1976(2) SLR 771.
11. Termination while on deputation— Temporary employee appointed for
two months sent on deputation. Extension of service by the borrowing department and
thereafter dispensing with the services on the ground that he was only on deputation,
held to be illegal. Urban Improvement Trust v. Labour Court, 2003 (1) SLR 222 Raj.
PART VII
APPEALS
ORDERS AGAINST WHICH NO APPEAL LIES
(v) an order—
(a) stopping him at the efficiency bar in the time-scale
of pay on the ground of his unfitness to cross
the bar;
(b) reverting him while officiating in a higher service,
grade or post, to a lower service, grade or post,
otherwise than as a penalty;
(c) reducing or withholding the pension or denying the
maximum pension admissible to him under
the rules;
(d) determining the subsistence and other allowances to
be paid to him for the period of suspension or for
the period during which he is deemed to be under
suspension or for any portion thereof;
(e) determining his pay and allowances —
(i) for the period of suspension, or
(ii) for the period from the date of his dismissal,
removal, or compulsory retirement from service, or
from the date of his reduction to a lower service,
grade, post, time-scale or stage in a time-scale of
pay, to the date of his reinstatement or restoration
to his service, grade or post; or
(f) determining whether or not the period from the date
of his suspension or from the date of his dismissal,
removal, compulsory retirement or reduction to a
lower service, grade, post, time-scale or pay or
stage in a time-scale of pay to the date of his
reinstatement or restoration to his service, grade or
post shall be treated as a period spent on duty for
any purpose.
Explanation:— In this rule—
(i) the expression “Government servant” includes a person
who has ceased to be in the Government service;
440 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 23
COMMENTARY
SYNOPSIS
APPELLATE AUTHORITY
R. 24
COMMENTARY
SYNOPSIS
25.
Period of limitation of appeals — No appeal preferred under
this part shall be entertained unless such appeal is preferred within a
period of forty five-days from the date on which a copy of the order
appealed against is delivered to the appellant:
Provided that the appellate authority may entertain the appeal after
the expiry of the said period, if it is satisfied that the appellant had
sufficient cause for not preferring the appeal in time.
COMMENTARY
SYNOPSIS
power vested in the proper authority has been exercised by proper application of mind,
High Court under Article 226 of Constitution cannot interfere with that discretionary
exercise of power. V. Duragappa v. Chief Engineer and Disciplinary Authority, K.E.B.,
AIR 1980 Ker 167. See also Union of India v. Jeet Singh, 1987(1) SLR 337 All.
2. Sufficient Cause— Supreme Court in Collector, Land Acquisition,
Anantnag v. Mst. Katiji, AIR 1987 SC 1353: 1987(3) SCC 107: 1987(2) SCR 387:
1988(19) ECR 565: 1987(167) ITR 471: 1987(28) ELT 185: 1987(62) Comp Cas 370:
1987(66) STC 228 held that the expression “sufficient cause” employed by the
legislature in the Limitation Act is adequately elastic to enable the Courts to apply the
law in a meaningful manner which sub-serves the ends of justice that being the life
purpose for the existence of the institution of courts. It was further observed that a
liberal approach is adopted on principle as it is realised that:
“1. Ordinarily a litigant does not stand to benefit by lodging an appeal
late.
2. Refusing to condone delay can result in a meritorious matter being
thrown out at the very threshold and cause of justice being
defeated. As against this when delay is condoned the highest that
can happen is that a cause would be decided on merits after
hearing the parties.
3. “Every day”s delay must be explained” does not mean that a
pedantic approach should be made. Why not every hour”s delay.
every second”s delay ? The doctrine must be applied in a rational
common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted
against each other, cause of substantial justice deserves to be
preferred for the other side cannot claim to have vested right in
injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or
on account of culpable negligence, or on account of mala fides. A
litigant does not stand to benefit by resorting to delay. In fact he
runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its
power to legalize injustice on technical grounds but because it is
capable of removing injustice and is expected to do so.”
It is submitted that the same principles should apply in dealing with
condonation of delay in filing the appeal under Rule 25. In fact Supreme Court in a
subsequent case relying on above observations has noted the effect of dismissal of
appeal on technical ground of limitation, in these words—
“Dismissing the appeals on technical grounds of limitation would
not, in any way, advance the interests of justice but admittedly,
result in failure of justice as the impugned judgements are likely
to affect not only the parties before us, but hundreds of other
446 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 26
COMMENTARY
SYNOPSIS
CONSIDERATION OF APPEAL
R. 27
27.
Consideration of appeal — (1) In the case of an appeal
against an order of suspension, the appellate authority shall consider
whether in the light of the provisions of Rule 10 and having regard to
the circumstances of the case, the order of suspension is justified or not
and confirm or revoke the order accordingly.
(2) In the case of an appeal against an order imposing any of the
penalties specified in Rule 11 or enhancing any penalty imposed under
the said rules, the appellate authority shall consider—
(a) whether the procedure laid down in these rules has been
complied with and if not, whether such non-compliance
has resulted in the violation of any provisions of the
Constitution of India or in the failure of justice;
(b) whether the findings of the disciplinary authority are
warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is
adequate, inadequate or severe;
and pass orders—
(i) confirming, enhancing, reducing, or setting aside
the penalty; or
(ii) remitting the case to the authority which imposed or
enhanced the penalty or to any other authority with
such direction as it may deem fit in the
circumstances of these cases;
Provided that—
(i) the Commission shall be consulted in all cases
where such consultation is necessary;
448 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 27
COMMENTARY
SYNOPSIS
1. Appellate authority to deal with points raised and to pass speaking order ..................... 449
2. Appellate authority to follow principles of natural justice ............................................. 449
3. Appellate authority to give reasons in the order ............................................................. 452
4. Appellate authority whether to give reason when he dismisses the appeal .................... 452
CONSIDERATION OF APPEAL
1. Appellate Authority to Deal with Points Raised and to Pass Speaking
Order — A mandatory and statutory duty has been cast on the appellate authority to
consider the appeal and deal with the points raised and pass a speaking order thereon.
Order of appellate authority is to be quashed if he has not passed order in accordance
with the requirements of the Rule. Jagan Nath v. Quarter Master General, 1971(1) SLR
810 (Delhi); Kripal Singh v. State of Rajasthan, 1980(2) SLR 717: 1980 SLJ 598. See
also T.T. Vinsalarajan v. Kerala, Public Service Commission, 1988(1) SLR 523 (Ker.).
Order passed by Disciplinary Authority for recovery of loss from delinquent
after disciplinary proceeding and dismissal from service. Appeal dismissed by
Appellate Authority by a non-speaking order. Held that the order of Appellate
Authority was illegal and accordingly it was set aside and remanded for
reconsideration. S. Ramanathan v. Chief Judicial Magistrate, 2001(5) JT 494: 2001(4)
SLT 473.
2. Appellate Authority to Follow Principles of Natural Justice — (i) The
appellate authority has to follow the principles of natural justice. It has not only to do
justice, but should appear to do justice, and should not allow the opinion of other
persons to operate on his mind, but it has to form an independent opinion of its own
without looking to the opinion regarding the merits expressed by others. Union of India
v. B.S. Misra, 1973(2) SLR 430 (Raj); B.C. Thangkhiew v. Union of India, 1973(2) SLR
445: 1973 SLJ 1021; Nathaniel Ghosh v. Union Territory of Arunachal Pradesh,
450 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 27
1980(2) SLR 733. See also N. Ramulu v. Scientific Advisor to Minister of Defence,
1994(4) SLR 534 (CAT Hyderabad).
(ii) Natural justice is a vary elastic term. Its rules very from tribunal to
tribunal. The question whether or not any rules of natural justice had been contravened
should be decided not under any preconceived notions, but in the light of the statutory
rules and provisions. Nagendra Nath Bora v. Commissioner of Hill Division, AIR 1958
SC 398: 1958 SCJ 798.
In a case decided by the Central Administrative Tribunal, Guwahati, Bankim
Chaudhary v. Union of India, 1991(16) ATC 658, it has been held that where the
Inquiry Officer finds some of the charges partly true, one charge not proved and other
wholly proved and the punishing authority without giving reasons, imposes punishment
on the ground that the Inquiry Officer had held all the charges proved, the punishment
is bad and a non-speaking order of the appellate authority upholding such punishment is
also bad. Bankim Chaudhary v. Union of India, 1991(16) ATC 658. The case related to
employees of the Indian Council of Agricultural Research.
Appellate authority must not only give bearing to the Government servant
concerned but must also give reasons. Bankim Chaudhary v. Union of India, 1991(16)
ATC 658. The Tribunal referred R.P. Bhatt v. Union of India, AIR 1986 SC 1040: 1985
Supp(1) SCR 947: 1986(2) SCC 651: 1986 Lab IC 790: 1986 ATC 37: 1985(3) SLR
742: 1986(1) SLR 470 & 775: 1986(1) SLJ 383: 1986(1) ATR 149: 1986(52) FLR 354,
as to the meaning of the word “consider” in Rule 27, CCS Rules. Further, it quoted
from Ram Chander v. Union of India, AIR 1986 SC 1173: 1986(2) SCR 980: 1986(3)
SCC 103: 1986 Lab IC 885: 1986(1) ATC 47: 1986(2) LLJ 34: 1986(53) FLR 191:
1986(2) SLJ 249: 1986(2) SLR 608: 1986(2) ATR 252, the following passage in a case
relating to rule 22(2) of the Railway Servants (Discipline and Appeal) Rules, 1968:—.
“Such being the legal position, it is of utmost importance after the Forty-second
Amendment as interpreted by the majority in Union of India v. Tulsiram Patel,
1985(3) SCC 398: 1985 SCC (L&S) 672: AIR 1985 SC 1416: 1985 Supp(2)
SCR 131: 1985(3) SCC 398: 1985(3) Comp LJ 45: 1985(2) SLR 576: 1985(2)
SLJ 145, that the appellate authority must not only give a hearing to the
Government servant concerned, but also pass a reasoned order dealing with the
contentions raised by him in the appeal. We wish to emphasise that the
reasoned decisions by Tribunals, such as Railway Board”s present case will
promote public confidence in the administrative process. An objective
consideration is possible only if the delinquent servant is heard and given a
chance to satisfy the authority regarding the final orders that may be passed on
appeal. Considerations of fair play and justice also require that such a personal
hearing should be given”.
Appellate authority must give personal hearing, even if an applicant did not ask
for it. Ram Singh v. Union of India, 1988(6) SLR 218, 233 para 7 (CAT Chandigarh),
Ram Chander v. Union of India, ATR 1986(2) SC 252.
Proceedings under Central Civil Services (Pension) Rules, 1972 are quasi
judicial in nature. Appellate authority is under obligation to record reasons, after
R. 27] APPEALS 451
dismissing the appeal. To dismiss the appeal by saying “there is no merit in the appeal”
is no compliance with the rules. Such order is illegal. M. Kali Muthu v. Commandant,
Defence Services Staff College, Wellington, 1988(4) SLR 725 (CAT Madras).
The appellate authority should not satisfy itself merely about the propriety of
the punishment. It must also consider whether the proper procedure has been followed
and if not whether there has been any failure of justice. It must also consider whether
the findings of the disciplinary authority are warranted by the evidence. [R.P. Bhatt v.
Union of India, 1986(1) SLR 470 (SC); Dr. Anil Kapur v. CSIR, 1990(4) SLR 378
(CAT Chandigarh).
Appellate authority is competent to remand case for de nova proceedings to the
disciplinary authority from the stage of cross-examination of Prosecution Witness No.
1. This is not prohibited by Rule 126, P&T Manual or by Rule 27(2)(c), CCS (CCA)
Rules. What Rule 27(2)(c) prohibits is an order which both, confirms or alters the
penalty and remands the case J. Shamdev v. Union of India, 1990(3) ATC 85
(Hyderabad).
The word “consider” in Rule 27(2) of the CCS (CCA) Rules casts on the
appellate authority an obligation to give reasons by applying its mind. A mechanical
reproduction of the provisions of the rule without marshalling the evidence to sustain
the finding of the disciplinary authority will not cure the legal flaw in the appellate
order. R.P. Bhatt v. Union of India, 1986(1) SLR 470 (SC); Ram Chandra v. Union of
India, ATR 1986(2) SC 252: 1986(2) SLR 608; C. Sukumuran v. Director General,
ICAR, 1990(7) SLR 249 CAT (Ern).
Appellate authority hearing the appeal against imposition of penalty imposed as
a result of disciplinary proceedings is under obligation to pass a speaking order while
dismissing the appeal. Failure to do so makes the order illegal. J.C. Mehta, Supdt.
Engr., P.G.I., Chandigarh v. Post Graduate Institute of Medical Education and
Research, Chandigarh, 1988(4) SLR 768 (P&H).
It is the duty of the appellate authority:
(a) to discuss thoroughly the procedural aspects as well as the justness of
the findings of the disciplinary authority with reference to the
admissible evidence;
(b) to discuss the point raised in the appeal; and.
(c) to give a definite conclusion that (i) the charge levelled against the
employee has been established and (ii) that the penalty is appropriate
and does not require enhancement or interference.
H.P. Kahali v. Union of India, 1989(7) SLR 786, 791 (CAT Calcutta).
Where the disciplinary authority imposed punishment of reduction to lower
stage for one year and the appellate authority enhanced the punishment and ordered
dismissal by a non-speaking and unreasonable order, the order is illegal. Sushil Shekhar
Mondal v. Union of India, 1988(7) SLR 164 (CAT Calcutta).
452 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 27
Held, “It is surprisingly bold order. How could so many live questions posed go
unanswered? The order is as silent as the dead. The impugned order is invalid. The
appellate authority has miserably failed to comply with the legal requirements of stating
reasons in its order”. Nathaniel Ghosh v. Union Territory of Arunachal Pradesh,
1980(2) SLR 733.
“I have gone through the records of the case and find that the grounds of appeal
put forward by Sri…… are not tenable. I have come to the conclusion that the findings
of and the penalty imposed by the disciplinary authority are warranted by the evidence
on record. I, therefore, reject the appeal of Sri………”, held, that the contents of Rule
27 have not been followed in passing the appellate order and the said order is quashed.
Doraiswamy v. Union of India, 1980 SLJ 385 (Kar).
The order must be in conformity with the provisions of Rule 27. Kripal Singh
v. State of Rajasthan, 1980 SLJ 598: 1980(2) SLR 717; S. Doraiswamy v. Union of
India, 1980 SLJ 385 (Kar).
454 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 27
Appellate order must discuss the points raised in the appeal. A non-speaking
order made without application of mind is not sustainable. T.D. Sathya Kumar v.
Director, R & D Organisation, 1989(7) SLR 180 (CAT Bangalore).
7. Personal Hearing: Opportunity for by Appellate Authority — In Dharani
Mohan Barman v. State of Assam, AIR 1963 Assam 183, it was held that normal right
of an appellate to be heard in support of his appeal, before the same is rejected, should
prevail. In Girish Chandra Goswami v. A.K. Roy, AIR 1968 Assam 52, it was held that
in a statutory appeal the parties must be given a hearing. Delhi and Gujarat High
Courts, however, did not subscribe to the view of Assam High Court. In Bhagat Ram v.
Union of India, 1968 DLT 495: AIR 1968 Delhi 269, It was held that nowhere in these
Rules a personal hearing to the appellate is provided nor has any right been conferred
on him to claim such a hearing. If the provisions of Article 311 of Constitution have
been fully complied with there is no just occasion for a Government servant to raise any
further grievance and to claim any further hearing. No opportunities beyond those
prescribed by sub-clause (2) of Article 311 can be claimed by a Government servant. At
the stage of appeal under the Rules it is a matter for the appellate authority to satisfy
itself that the necessary provisions of law have been fully complied with and then after
taking into consideration all the circumstances of the case pass such order as it deemed
just and equitable. See also State of Gujarat v. Pagi Bhurabhai Rumalbhai, AIR 1969
Gujarat 260 and Madan Lal Sethee v. Union of India, 1975(2) SLR 286: 1979(3) SLR
93. Amarjit Singh v. Punjab Warehousing Corporation, 1991(1) SLR 30 (P&H).
8. Expression of Opinion by Appellate Authority before Deciding Appeal—
Appellate authority long before dismissing the appeal made up his mind and expressed
his opinion adverse to the petitioner. Hearing of appeal held nothing but farce.
Mohinder Singh v. State of Punjab, 1968 Cur LJ 476.
9. Case Independently Considered — Even assuming that there was any
defect in the enquiry proceedings, as the punishing authority and the appellate
authority, have independently considered the matter and found the respondent guilty on
the evidence on record, it must be held that in the circumstances of the case there has
been no violation of the principles of natural justice when the order of dismissal was
passed. State of Assam v. Mahendra Kumar Das, AIR 1970 SC 1255: 1970(2) SCJ 659.
See also Ram Lagan v. Union of India, 1990(12) ATC 257 (Calcutta).
10. Appellate Authority to Apply Mind Independently — Where the
appellate authority did not pass any order except initialling the notes put up by the
office after the opinion from the Law Department had been obtained, held, this is not an
independent order after application of his mind by the authority. This order is not
sustainable. Municipal Committee v. State of H.P., 1979(2) SLR 171; Nathaniel Ghosh
v. Union Territory of Arunachal Pradesh, 1980(2) SLR 733. See also M.P. Roy v.
Union of India, 1990(3) SLR 339, (Cal Pat).
(i) Law Department should not give their advice in such cases and it should be
left to the Appellate Authority to apply his mind and to decide the appeal
independently. The practice of giving notes by the office is also wrong as it prejudices
the mind of Appellate Authority, who is a quasi judicial authority.
R. 27] APPEALS 455
AIR 2000 SC 2587: 2000 Supp (1) SCR 538: 2000(6) SCC 359: 2000(3) KLT 354:
2000(119) STC 505: 2000(245) ITR 360: 2000(97) FJR 213: 2001(129) ELT 11.
Though loosely an expression merger of judgment, order or decision of a court
or forum into the judgment, order or decision of a superior forum is often employed, as
a general rule the judgment or order having been dealt with by a superior forum and
having resulted in confirmation, reversal or modification, what merges is the operative
part i.e., the mandate or decree issued by the Court which may have been expressed in
positive or negative form. For example, take a case where the subordinate forum passes
an order and the same, having been dealt with by a superior forum, is confirmed for
reasons different from the one assigned by the subordinate forum what would merge in
the order of the superior forum is the operative part of the order and not the reasoning
of the subordinate forum; otherwise there would be an apparent contradiction. However,
in certain cases, the reasons for decision can also be said to have merged in the order of
the superior court if the superior court has, while formulating its own judgment or
order, either adopted or reiterated the reasoning, or recorded an empress approval of the
reasoning, incorporated in the judgment or order the subordinate forum. The doctrine of
merger is not of universal or unlimited application; the nature of jurisdiction exercised
by the superior forum and the content or subject-matter of challenge laid or which could
have been laid, shall have to be kept in view. S. Shanmugavel Nadar v. State of Tamil
Nadu, AIR 2002 SC 3484: 2002(8) SCC 361: 2002(4) SCJ 386: 2002(2) RCR 404.
Since the above doctrine of merger is not of universal application, the present
Rule 28 has been incorporated to ensure the application of this doctrine expressly.
Accordingly after the decision of superior authority, it is the duty of subordinate
authority to implement the decision.
458 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 29
PART VIII
REVISION AND REVIEW
R. 29
(c) remit the case to the authority which made the order or to
any other authority directing such authority to make such
further enquiry as it may consider proper in the
circumstances of the case; or
(d) pass such other orders as it may deem fit:
1
[Provided that no order imposing or enhancing any penalty shall
be made by any revising authority unless the Government servant
concerned has been given a reasonable opportunity of making a
representation against the penalty proposed and where it is proposed to
impose any of the penalties specified in clauses (v) to (ix) of Rule 11 or
to enhance the penalty imposed by the order sought to be revised to any
of the penalties specified in those clauses, and if an inquiry under Rule
14 has not already been held in the case no such penalty shall be
imposed except after an inquiry in the manner laid down in Rule 14
subject to the provisions of Rule 19, and except after consultation with
the Commission where such consultation is necessary:]
Provided further that no power of revision shall be exercised by
the Comptroller and Auditor-General, Member (Personnel), Postal
Services Board, 2[Adviser (Human Resources Development),
Department of Telecommunications] or the Head of Department, as the
case may be, unless —
(i) the authority which made the order in appeal, or
(ii) the authority to which an appeal would lie, where no
appeal has been preferred, is subordinate to him.
(2) No proceeding for revision shall be commenced until after —
(i) the expiry of the period of limitation for an appeal, or
(ii) the disposal of the appeal, where any such appeal has been
preferred.
(3) An application for revision shall be dealt with in the same
manner as if it were an appeal under these rules.
COMMENTARY
SYNOPSIS
1. Scope of rule .................................................................................................................. 460
2. Object and reasons of amendment of Rule 29 and insertion of Rule 29-A..................... 461
3. Period of limitation for appellate authority to initiate revision proceedings ................... 461
4. Variation or modification of order ................................................................................. 462
5. Revising authority to give reasons for his findings ........................................................ 463
6. Promotion after penalty: Penalty cannot be enhanced under sub-rule (1) .. .................. 463
1. Scope of Rule – Rule 29 gives power to call for the records of any enquiry
and to revise any order. It also authorizes the authorities mentioned therein to remit the
case to the authority which made the order. Such a power is the power of revising the
orders passed by subordinate authorities. The authorities mentioned in the rule may
confirm, reduce, enhance or set aside penalty imposed by the order. Proviso to the rule,
however, impose the limitation on the (revising) authority that unless the Government
servant concerned has been given reasonable opportunity of making a representation
against the penalties proposed or where it is proposed to impose any of the penalties
specified in clauses (v) to (ix) of Rule 11 (Major penalties), or to enhance the penalty
imposed by the order sought to be (revised) to any of the penalties specified in those
clauses, no such penalty shall be imposed except after an inquiry in the matter laid
down in Rule 14 except after consultation with the Commission where such
consultation is necessary. When the authority proposes to impose a major penalty,
procedure of enquiry laid down by Rule 14 has to be followed but where the enquiry
was held according to the provisions of Rule 14 and the authority proposes to enhance
the punishment to a major penalty, it is not the requirement that again fresh enquiry
from the beginning under Rule 14 should be held. Where originally the enquiry was
held for imposing minor penalty and procedure laid down in Rule 14 for imposing
major penalty could not indeed was followed in such a case if the (revising)authority
proposes to impose one of the major penalties, then the proviso requires that no such
penalty shall be imposed except after an enquiry in the manner laid down in Rule 14. If
a proper enquiry under Rule 14 was conducted by the disciplinary authority, a fresh
enquiry is not necessary in revision proceedings under Rule 29. See B.L. Kohli v. Union
of India, 1974 (2) SLR 679; T.L. Anantharaman v. Union of India, 1979 (1) SLR 196;
Krishan Gopal Sharma v. Union of India, 1979 (2) SLR 839: 1981 (1) SLR 775;
Balkishan Soral v. Union of India, 1994 (8) SLR 481 (CAT Jodhpur).
President”s power of review/revision is absolute and the Tribunal cannot
interfere with it unless the exercise of the power is patently arbitrary or suffers from the
vice of mala fide. Rule 29 (1) (i) and Rule 29A, CCS (CCA) Rules empower the
President to enhance the punishment. G.L.Gandhi v. Union of India, 1990 (2) ATJ 176
(Principal Bench).
R. 29] REVISION AND REVIEW 461
Powers of Revising Authority under Rule 29 are very wide. It can direct
disciplinary authority to proceed under Rule 16, CCS Rules. R.K.Gupta v. Union of
India, 1990 (14) ATC 628 (New Delhi).
representation did not find favour. Naresh Kumar v. H.P. State Civil Supplies
Corporation, (1989) 7 SLR 82 (HPAT, Simla).
Appellate authority under rule 29(1)(V) CCS (CCA) Rules, 1965 must
complete the process within 6 months from the date of the order sought to be revised.
The time limit relates to completion of the action enquiry and not the mere initiation of
the action. H.N. Divakaran v. Collector of Customs, (1991) 2 SLR 534, 538, para 10
(CAT).
Time limit of 6 months on rule 29(1)(v) governs the completion of the action
by appellate authority Toney v. Director of Telegraphs, Kerala, (1976) KLT 172;
Nandresh Kumar v. H.P. State Civil Supplies Corporation, (1989) 7 SLR 82.
Under rule 29(1)(v) of CCS (CC&A) Rules, the appellate authority can revise
the order within six months of the date of the order proposed to be revised. Dilbagh
Singh v. Union of India, (1990) 3 SLR 760, 761, 768 (CAT Chand).
A person to whom a notice is issued to show cause why the penalty already
imposed on him should not be enhanced is entitled to urge that the findings are wrong
and that no punishment or enhanced punishment is called for. M. Venugopala Chetty v.
Union of India, 1971 (1) SLR 853 (AP).
Under rule 29(d) of CRPF Rules, 1955, the power of revision has been
conferred and such power can be exercised only if there is some punishment imposed
upon the employee. It has no application if no punishment has been imposed. Mahinder
Singh v. Union of India, 2000(2) SLR 345 P&H.
R. 29A] REVISION AND REVIEW 463
REVIEW
R. 29A
29A. Review – The President may, at any time, either on his own
motion or otherwise, review any order passed under these rules, when
any new material or evidence which could not be produced or was not
available at the time of passing the order under review and which has the
effect of changing the nature of the case, has come or has been brought,
to his notice:
Provided that no order imposing or enhancing any penalty shall be
made by the President unless the Government servant concerned has
been given a reasonable opportunity of making a representation against
the penalty proposed or where it is proposed to impose any of the major
penalties specified in Rule 11 or to enhance the minor penalty imposed
by the order sought to be reviewed to any of the major penalties and if
an inquiry under Rule 14 has not already been held in the case, no such
penalty shall be imposed except after inquiring in the manner laid down
in Rule 14, subject to the provisions of Rule 19, and except after
consultation with the Commission where such consultation is necessary.
COMMENTARY
SYNOPSIS
1. Review without power... ................................................................................................ 464
2. Review of order of compulsory retirement ..................................................................... 464
3. Correction of mistake ..................................................................................................... 464
464 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 29A
PART IX
MISCELLANEOUS
R. 30
COMMENTARY
SYNOPSIS
R. 35] MISCELLANEOUS 467
1. Central Civil Services (Classification, Control and Appeal) Rules, 1957 ...................... 467
2. Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952 .......... 467
3. Effect of Sub-rule (1) — Rule 34 (1) makes the new rules applicable to all
those persons who were appointed prior to the coming into force of the new rules and to
whom the old rules apply. The rights to the extent saved are detailed in the proviso. It is
not necessary when the rules are repealed and replaced by another set of rules that there
should be a specific mention that by virtue of new rules, all the previous rules are
thereby repealed. There is nothing to suggest that Rule 34 saves old Rule 55-B by mere
reason of absence of reference to Rule 55-B in the new rules. Purshottam S. Irani v.
H.M. Singh, 1977(1) SLR 636.
____