Tag Archives: Discretionary Power

Authority Vested With Power to Exercise Discretion – Can Only Pass an Order

In Joint Action Committee of Air Line Pilots’ Association of India v. Director General of Civil Aviation, (2011) 5 SCC 43, it was observed as under:

        “It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal.”

        In Writ – A No. 39180 of 1998, Vinod Kumar Singh v. District Basic Shiksha Adhikari, it was held as under:         “However, so far as the impugned order dated 24.10.1998 is concerned the said order has been passed by the District Magistrate directing the District Inspector of Schools not to release the salary of the petitioner. The said order has been assailed by the petitioner on the ground that the District Magistrate had no jurisdiction to pass any such order as it was only the educational authorities who were the competent authorities to pass any order, if at all. This controversy has already been settled by the Hon’ble Allahabad High court that the District Magistrate has no power or authority to pass any orders with regard to matters which are exclusively within the domain of the educational authorities.” Amitendra Shekha Mishra v. State of U.P., 2018 (6) AWC 5972.

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DNA Test – Eminent Need

When there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.” Ajay Singh v. Rama Bai, MP No. 1239 of 2020 (MP HC).

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Power Conferred Upon An Authority – Abdication of

In the case of Anirudhsinhji Karansinhji Jadeja v. State of Gujarat, (1995) 5 SCC 302, it was held as under:

        “Broad principles that emerge is that if a power conferred upon an authority is not exercised by him independently within the framework of the Statute/law and the decision is taken by him under the “dictation” of a superior authority or a Minister, it shows that he has abdicated his power.

        Professor De Smith, in his principles of Judicial Review, 1999 Edition, page 240 has aptly said:

        “An authority entrusted with a discretion must not, in the purported exercise of his discretion, act under the dictation of another body or person. In at least two Commonwealth cases, licensing bodies were found to have taken decision on the instructions of the heads of Government who were prompted by extraneous moves. But, as less colourful cases illustrate, it is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide, although it remains a question of fact whether the repository of discretion abdicated it in the face of external pressure.”

        In Dipak Babaria v. State of Gujarat, (2014) 3 SCC 502, the Hon’ble Supreme Court has reiterated the principle that if power conferred upon the authority under the Statute is not exercised by him independently and decision is taken by him under the instruction (dictation) of a superior authority, it goes to show that he has not applied his mind and abdicated his power. Umaraw Singh Yadav v. State of U.P., 2020 (1) AWC 905.     

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Exercise of Discretion by Selection Committee – In Matter of Recruitment

Law is settled that exercise of discretion by the selection committee, in the matter of recruitment, is not required to be interfered with by the Courts, unless it is found contrary to the rules or is otherwise arbitrary or suffers from malafide. The Hon’ble Apex Court in Union Public Service Commission v. M. Sathiya Priya, (2018) 15 SCC 796, has observed as under:

“This Court has repeatedly observed and concluded that the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The Courts cannot sit as an appellate authority or an umpire to examine the recommendations of the Selection Committee like a Court of Appeal. This discretion has been given to the Selection Committee only, and the Courts rarely sits as a Court of Appeal to examine the selection of a candidate; nor is it the business of the Court to examine each candidate and record its opinion. Since the Selection Committee constituted by the UPSC is manned by experts in the field, we have to trust their assessment unless it is actuated with malice or bristles with mala fides or arbitrariness.” Lokendra Kumar Tiwari v. Union of India, 2019 (2) ESC 712.

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Judicial Discretion

In Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80 it was held:
“When it is said that a matter is within the discretion of the court, it is to be exercised according to well established judicial principles, according to reason and fair play and not according to whim and caprice. “Discretion”, said Lord Mansfield in R v. Wilkes, (1558-1774) All ER Rep 570, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular (see Craies on Statute Law, 6th Edition, P. 273).
In Aero Traders (P) Ltd. v. Ravinder Kumar Suri, (2004) 8 SCC 307, the court observed:
“According to Black’s Law Dictionary “judicial discretion” means the exercise of judgment by a Judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word “discretion” connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard and fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. (See 27Corpus Juris Secundum, P. 289) When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice and not according to private opinion: according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a Judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him.” State of Himachal Pradesh v. Nirmala Devi, (2017) 7 SCC 262.

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Expression “Sufficient Cause” – Interpretation of

The expression “sufficient cause” is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of the justice – that being the life –purpose for the existence of the institution of Courts.
Hon’ble Apex Court in the case of State of Haryana v. Chandra Mani and others, AIR 1996 SC 1623 held as under:
“In G. Ramegowda v. Special Land Acquisition Officer, (1988) 2 SCC 142, it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression “sufficient cause” must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to the party seeking condonation of delay.”
In Baswaraj v. Special Land Acquisition Officer, AIR 2014 SC 746 it was held as under:
“Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in view of the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case, or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously.” Smt. Jinnatul Nisa v. VIth ADJ, 2017 (123) ALR 431.

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Principles of Back wages

In Gujarat Agricultural University v. All Gujarat Kamdar Karmachari Union, (2009) 15 SCC 335, doctrine of “now ork, no pay” has been discussed in a bit detail. It was observed:
“One of the principles well known in the matters of service is that if a person has worked, he must be paid and if he has not worked, he should not be paid. This is expressed in doctrine, ‘no work, no pay’. Another oft repeated principle in service jurisprudence is that if an employer has wrongly denied an employee his due then in that case he should be given full monetary benefits.
In Shiv Nandan Mahto v. State of Bihar, (2011) 11 SCC 626, the Hon’ble Supreme court set aside the decision of the High Court denying payment of salary, on account of suspension, by observing:
“The conclusion is, therefore, obvious that the appellant could not have been denied the benefit of back wages on the ground that he has not worked for the period when he was illegally kept out of service. The appellant was entitled to be paid full back wages for the period he was kept out of service.”
In respect of principle of grant of back wages, in Chairman-Cum-M.D., Coal India Ltd. v. Ananta Saha, JT 2011 (4) SC 252, it was held:
“Even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straight-jacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is re-instated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of re-instatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court/tribunal should not be rigid or mechanical but flexible and realistic.
Thus, while considering the question of arrears of salary, where the employee could not work for an act of employer, which is found to be illegal or unauthorized, direction for payment of full salary or arrears of salary is not automatic or mechanical but has to be considered in the light of the numerous attending circumstances and the facts of the case. Bhagwat Prasad v. State of U.P., 2014 (6) AWC 5858.

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