Tag Archives: Disciplinary Proceedings

Deficiencies in Ability – Would Not Constitute Misconduct

The Supreme Court in Union of India v. J. Ahmed, AIR 1979 SC 1022, observed that failure to attain the highest expectation of an officer holding responsible post or lack of aptitude of quality of leadership would not constitute as failure to maintain devotion to duty because if it is so then every officer rated average would be guilty of misconduct. In the said case the charges leveled against the officer indicated lack of efficiency, lack of foresight and lack of indecisiveness but the Supreme Court observed that these deficiencies in personal character or personal ability would not constitute misconduct for the purposes of disciplinary proceedings.
In M.M. Malhotra v. Union of of India, JT 2005 (9) SC 506, it was observed as under:
“Misconduct” as stated in Batt’s Law of Master and Servant (4th Edition) (at page 63) is comprised positive acts and not mere neglects or failures. The definition of the work as given in Ballentine’s Law Dictionary is “A transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness.” Chandra Bhushan Tripathi v. State of U.P., 2017 (6) AWC 6106.

Advertisements

Leave a comment

Filed under Deficiencies in Ability, Employment Law

Enquiry – Reasonable Practicability of Holding

Words “reasonably practicable” does not mean “impracticable”. Practicable means “capable of being put into practice, carried out in action, effected, accomplished, or done, feasible”. Whether it was practicable to hold enquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b) of Article 311(2), proviso. It should be looked into point of view, by an ordinary concerned, as he would have thought or opined and take a reasonable view of prevailing situations. The reasonable practicability of holding an enquiry is a matter of assessment to be made by the disciplinary authority who is competent to do so at present and available on the spot knowing each and every aspect of the facts and circumstances necessary for knowing whether an enquiry is reasonably practicable or not. A disciplinary authority however is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry since the case of Department is weak or must fail if conducted. The statutory provisions also require the disciplinary authority to record its reasons for arriving at the satisfaction that the enquiry is not reasonably practicable. Ram Gopal v. Union of India, 2017 (152) FLR 822.

Leave a comment

Filed under Employment Law, Reasonable Practicability of Holding an Enquiry

Employment Law – Double Jeopardy

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

In the case of R. Viswan v. Union of India, (1983) 3 SCC 401, the issue of double jeopardy was discussed and in that case Government servant was punished for the same misconduct both under the Army Act as well as under Central Government Rules, and it was held that, two proceedings under the army Act and the Central Government Rules operate in two different fields though the crime or the misconduct might arise out of one and the same Act. The Martial Court proceedings deals with the penal aspect of misconduct while proceedings under the Central Government Rules deals with disciplinary proceedings in respect of the misconduct. Therefore, it was held that it does not amount to double jeopardy. Dashrath Singh v. Andhra Bank, 2016 (150) FLR 540.

 

Leave a comment

Filed under double jeopardy, Uncategorized

Employee – Right to Receive Enquiry Officer’s Report

The Apex Court in the case of Union of India v. Mohd. Ramzan Khan, 1990 (61) FLR 736 and in the case of Managing Director, ECIL v. B. Karunakar, 1993 (67) FLR 1230 has held that where the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report in court before the disciplinary authority arrives at its conclusions with regard to guilt or innocence of the employee with regard to the charges leveled against him. That right is a part of the employee’s right to defend himself against the charges leveled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decisions on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of principles of natural justice. Vijay Kumar Yadav v. State of U.P., 2016 (148) FLR 750.

Leave a comment

Filed under Departmental Proceedings, Enquiry Officer's Report

Disciplinary Proceedings – Against a Retired Employee

In Anant R. Kulkarni v. Y.P. Education Society, 2013 (138) FLR 168 (SC), the Hon’ble Apex Court considered the question as to whether continuation of departmental enquiry is permissible against a retired employee, wherein it was held that enquiry against a retired employee is subject to the statutory rules, which governs the terms and conditions of his service. If the inquiry was initiated while the delinquent employee was in service, it would continue even after his retirement but, nature of punishment would be limited to certain extent and accordingly, punishment of dismissal or removal of the employee from service cannot be imposed on the retired employee. The Hon’ble Supreme Court has categorically ruled that in the absence of any statutory power conferred on the management, to hold a fresh enquiry after the retirement, no such enquiry against the employee could be conducted. In the aforesaid decision, the Apex Court has decided the issue thus:
“Thus, it is evident from the above, that the relevant rules governing the service conditions of an employee are the determining factors as to whether and in what manner the domestic enquiry can be held against an employee who stood retired after reaching the age of superannuation. Generally, if the enquiry has been initiated while the delinquent employee was in service, it would continue even after his retirement, but nature of punishment would change. The punishment of dismissal/removal from service would not be imposed. S. Andiyannan v. Joint Registrar, Co-operative Societies, 2015 (146) FLR 1079 (FB).

Leave a comment

Filed under Departmental Enquiry, Retired Employee

Departmental Enquiry-Reasonable Opportunity

In cases where there is no oral evidence adduced and documentary evidence is not proved or exhibited by witnesses, it cannot be read into evidence for proving guilt of the employee. It is for this reason that many unscrupulous employer/establishment/department fabricate documents for proving charge against innocent employee and punish him without proving the same, thus denying a reasonable opportunity to him to defend himself. Sita Ram v. State of U.P., 2015 (1) ESC 178.

Leave a comment

Filed under Departmental Enquiry, Employment Law

Disciplinary Proceedings – Conclusion of

Disciplinary Proceedings are said to conclude when the disciplinary authority passes an order on the report of the Enquiry Officer. On receipt of the enquiry report the disciplinary authority may adopt any of the following three courses:
(a) He may accept the finding of guilt recorded by the enquiry officer and after supplying copy of the enquiry report to the delinquent employee, proceed to pass the penalty order.
(b) He may disagree with the findings of the enquiry officer and remit the matter for further enquiry.
(c) He may disagree with the findings of the enquiry officer exonerating the employee and himself after giving show cause notice to the employee, proceed to pass orders imposing penalty on the delinquent employee
Thus, disciplinary proceedings do not conclude merely with the recording of findings by the enquiry officer when he submits the enquiry report. Gulam Gausul Azam and others v. State of U.P., 2014 (5) AWC 4657.

Leave a comment

Filed under Conclusion of Disciplinary Proceedings, Employment Law