Monthly Archives: September 2012

Charge-sheet cannot generally be a subject-matter of challenge

Charge-sheet cannot generally be a subject – matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge – sheet be quashed at an initial stage as it would be a pre-mature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings. (Secretary, Ministry of Defence v. Prabhash Chandra Mirdha).

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Filed under Departmental Proceedings, Employment Law

Dismissal from service – Reasonable Opportunity

In a recent judgment of the Allahabad High Court in Ram Badan Chauhan v. Regional Administrative Committee, the term “Reasonable opportunity” in dismissing an employee from service was explained as under:

‘Reasonable opportunity would mean an opportunity which is to be given to the delinquent official to explain his conduct regarding the allegations leveled against him and also includes the manner in which the proceedings have been conducted. In this behalf, he is required to be provided both the inquiry report, copy of the proceedings in order to question the said inquiry. Appointing authority is required to examine the explanation of the delinquent official both on the manner in which inquiry has been conducted as also in respect to the punishment proposed by him. The proposed opinion framed by the appointing authority on the basis of an inquiry report is required to be reassessed and reviewed after the explanation is submitted by the delinquent official. This in essence is the requirement of rule as also based upon principle of providing reasonable opportunity to the delinquent official. “

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Filed under Dismissal of an employee, Employment Law

Doctrine of Autrefois Acquit

In order to attract the provisions of Article 20 (2) of the Constitution of India, i.e. doctrine of autrefois acquit or Section 300 of Crpc or Section 71 of IPC or Section 26 of the General Clauses Act, the ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence. Motive for committing the offence cannot be termed as the ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge. Sangeetaben Mahendrabhai Patel v. State of Gujarat and another, (2012) 7 SCC 721

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Filed under Criminal Law, double jeopardy