Category Archives: Employment Law

Vague Charges – Enquiry Cannot Sustain

Hon’ble Apex Court in Union Of India v. Gyan Chand Chattar, (2009) 12 SCC 78, has clearly held that no enquiry can be sustained on a vague charge. It was held as under:

“An enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.”

It was held in Anant R. Kulkarni v. Y.P. Education Society and others, (2013) 6 SCC 515, that it is absolutely clear that the charge sheet is vague and does not establish any charge, therefore, no enquiry can be proceeded on the basis of that. Tej Singh v. State of U.P., 2018 (3) ESC 1454.

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Filed under Uncategorized, Vague Charges

Compulsory Retirement — Subjective Satisfaction

The Hon’ble Apex Court in re: S. Ramachandra Raju v. State of Orissa, 1994 Supp (3) SCC 424, has held that the subjective satisfaction must be based on adverse material of the incumbent. It was held as under:

“In Baikuntha Nath Das v. Chief District Medical Officer, (1992) 2 SCC 299, a bench of three Judges of the Hon’ble Apex Court was to consider whether uncommunicated adverse remarks would be conisered to order compulsory retirement. The Court considering the scope of Fundamental Rule 56(j) on the anvil of administrative law, held that the order of compulsory retirement has to be passed on forming the opinion that it is in the public interest to retire a Government Servant compulsorily though the order is passed on the subjective satisfaction of the Government, the Government or the Review Committee shall have to consider the entire record of service before taking a decision in the matter, of course, attaching more importance to record of and performance during the later years. The record so considered would naturally include the entries in the confidential records, character rolls, both favourable and adverse. The order of compulsory retirement is not liable to be quashed on mere showing that while passing it, uncommunicated adverse remarks were taken into consideration. Further, this does not mean that judicial scrutiny is excluded altogether. Though the court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order if mala fide or passed on no evidence or that is arbitrary, in the sense that no reasonable person would form the requisite opinion or the given material, in short, if it is found to be a perverse order, the remedy under Article 226 is an important safeguard, since the remedy is an effective check against arbitrary, mala fide or perverse actions.”  Mukhtar Ahmad v. State of U.P., 2018 (3) ESC 1432.

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Service Rules – Cannot be altered by Government Orders

It is well settled that where the relevant Service Rules or the Rules governing the conditions of services provides for a particular thing, a simple Government Order is not sufficient to alter or modify the said thing or the Rules.

In Vijay Singh v. State of U.P., 2005 (2) AWC 1191 (FB), it was held in unequivocal terms that Statutory Rules cannot be set at naught by issuing executive instructions.

In Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Co-operative Housing Society, (2013) 5 SCC 427, it has been held that executive instructions which have no statutory force cannot override the law and any notice, circular, guidelines etc. which run contrary to the statutory laws cannot be enforced. Dr. Chandra Mohan Verma v. State of U.P., 2018 (128) ALR 384.

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Filed under Government Order, Uncategorized

Appointment Obtained – Fraudulently

Fraudulently obtained order of appointment or approval can be recalled by the authority concerned. In such cases, merely because the employee continued in service for a number of years, on the basis of fraudulently obtained order, cannot get any equity in his favour or any estoppels against the employer/authority. When appointment or approval has been obtained by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer. It would create no equity in his favour or any estoppel against the employer to cancel such appointment or approval since “Fraud and justice never dwell together.” Committee of Management v. State of U.P., (2018) 1 UPLBEC 610.

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During an Enquiry – Employee is Entitled to Subsistence Allowance

An employee is entitled to subsistence allowance during an inquiry pending against him or her but if that employee is starved of finances by zero payment, it would be unreasonable to expect the employee to meaningfully participate in a departmental inquiry. Access to justice is a valuable right available to every person, even to a criminal and indeed free legal representation is provided even to a criminal. In the case of a departmental inquiry, the delinquent is at best guilty of a misconduct but that is no ground to deny access to pension (wherever applicable) or subsistence allowance (wherever applicable). UCO Bank v. R.S. Shukla, 2018 (2) ESC 372.

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Filed under Departmental Proceedings, Subsistence Allowance

Delay in Payment of Retirement Dues – Penal Interest

Interest on delayed payment on retiral dues has been upheld time and again in a catena of decisions. In Shamal Chand Tiwari v. State of U.P.¸(W.P. No. 34804 of 2004) decided on 06.12.2005 it was held: “Now the question comes about entitlement of the petitioner for interest on delayed payment of retiral benefits. Since the date of retirement is known to the respondents well in advance, there is no reason for them not to make arrangement for payment of retiral benefits to the petitioner well in advance so that as soon as the employee retires, his retiral benefits are paid on the date of retirement or within reasonable time thereafter. Inaction and inordinate delay in payment of retiral benefits is nothing but culpable delay warranting liability of interest on such dues. In the case of State of Kerala v. M. Padnaban Nair, 1985 (1) SLR 750, the Hon’ble Supreme Court held as under:
“Since the date of retirement of every Government Servant is very much known in advance we fail to appreciate why the process collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government Servant on the date he retires or on the following day and pension at the expiry of the following months. The necessity for prompt payment of the retirement dues to a Government Servant immediately after his retirement cannot be overemphasized and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement.” Dr. Chandrakant Sharma v. Vice Chancellor, 2017 (1) ESC 128.

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Order of Appointment – Obtained Fraudulently

Fraudulently obtained order of appointment or approval can be recalled by the authority concerned. In such cases merely because the employee continued in service for a number of years, on the basis of fraudulently obtained order, cannot get any equity in his favour or any estoppels against the employer/authority. When appointment or approval has been obtained by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer. It would create no equity in his favour or any estoppels against the employer to cancel such appointment or approval since “Fraud and justice never dwell together”. Committee of Management v. State of U.P., (2018) 1 UPLBEC 610.

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Filed under Employment Law, Fraudulent Appointment