Tag Archives: Misconduct

Pendency of Judicial Proceedings – Does Not Confer A Right to Withhold Pension

A Division Bench of the Hon’ble Allahabad High Court in State of U.P. v. Faini Singh, Special Appeal No. 416 of 2014 decided on 25.04.2014, while considering the provisions of Regulation 919 A (3) of Civil Service Regulations observed that the power of withholding or withdrawing pension is to be used in cases where allegations are of serious nature or grave misconduct and of causing pecuniary loss and it cannot be exercised mechanically merely on the pendency of any judicial proceedings without considering the allegations against the retired Government Servant. In other words, pendency of even judicial proceedings has not been recognized as a matter of right to withhold the pension.

        In Bangali Babu Misra v. State of U.P., 2003 (3) AWC 1760, a Division Bench of the Hon’ble Allahabad High Court seised of a similar controversy held that in the absence of any provision under law, even if the petitioner is subjected to punishment in criminal proceedings that would not be a ground for withholding the post retiral benefits admissible to him. Radhey Shyam Chaubey v. High Court of Judicature at Allahabad, 2018 (3) AWC 2521.

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Power of – Review of Punishment

In Deputy Commissioner v. J. Hussain, (2013) 10 SCC 106, it was held that power of review of punishment ordinarily is not availed by a Court or Tribunal. Court while undertaking judicial review of matter is not supposed to substitute its own opinion on reappraisal of facts. In exercise of power of judicial review, court can interfere with the punishment imposed only when it is found to be totally irrational or is outrageous in defiance of logic. It was further observed “this limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities.” It further observed that it is only when punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. Yogendra Kumar v. Union of India, 2018 (5) AWC 4858.

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Mere Lack of Efficiency and Skill – Does Not Constitute Misconduct

In Shabih Haider v. State of U.P., 2018 (1) ADJ 327 it was held that the order of suspension is not to be passed in a routine manner but the competent authority is required to consider the gravity of the misconduct sought to be enquired into or investigated and the nature of the evidence placed before the appointing authority. The power of the State Government to place Government Servant under suspension is creature of the Statute and/or contract and the decision be taken keeping in view the letter and spirit of the Statute. The power of suspension arises when on an objective consideration the appointing authority is of the view that a formal disciplinary inquiry is expected or is proceeding. It was also held placing reliance on decision of a Five Judge Bench of the Hon’ble Allahabad High Court in State of U.P. v. Jai Sing Dixit, 1974 ALJ 92, that mere lack of efficiency or skill does not ipso facto constitute misconduct and call for suspension of a Government Servant. Vijay Kumar Agarwal v. State of U.P., 2020 (1) AWC 646.

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Suspension – In contemplation of Enquiry

The purpose of suspension of an employee in service jurisprudence is two fold. The traditional and dominant purpose of suspension is to aid and assist a disciplinary enquiry against an employee. Suspension in such cases is not a punishment. The second known purpose of suspension is to impose it as a punishment.

        When suspension is made in contemplation of a disciplinary enquiry, certain prerequisites have to be satisfied. An enquiry should be contemplated or underway into charges of misconduct. The charges of misconduct, if proved, should be serious enough to warrant a major penalty.

        The order of suspension should be passed after due and independent application of mind. The suspension should not be made as a matter of routine resulting from a suspension syndrome.

        At the stage of suspension the veracity of the charges cannot be ascertained and the merits of the defence cannot be examined. However, the order of suspension should disclose a prima facie act of misconduct.

        Suspension in contemplation of an enquiry, is made to aid the process of enquiry. Suspension takes out the delinquent employee from his domain of influence. This ensures that the enquiry is independent and fair.

        Suspension also takes off the charged employee from his regular duties. This enables the employee to join the enquiry proceedings and give fulsome cooperation to the enquiry officer. It also gives him adequate time to prepare his defense. Continuing the employee on regular duties, with an enquiry on foot, would not be in institutional interests either. The official work would suffer and the enquiry proceedings would be impeded. The suspension in such cases is not a punishment. Deepika Shukla v. State Of U.P., 2018 (6) AWC 6050.

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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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Misconduct – Possession of Pecuniary Resources

A public servant charged of criminal misconduct thereunder has to be proved by the prosecution to be in possession of pecuniary resources or property disproportionate to his known sources of income, at any time during the period of his office. Such possession of pecuniary resources or property disproportionate to his known sources of income maybe his or of anyone on his behalf as the case may be. Further, he would be held to be guilty of such offence of criminal misconduct, if he cannot satisfactorily account for such disproportionate pecuniary resources or property. The Explanation to Section 13(1)(e) of the Prevention of Corruption Act elucidates the words “known sources of income” to mean income received from any lawful source and that such receipt has been intimated in accordance with the provisions of law, rules, orders for the time being applicable to a public servant.

From the design and purport of clause (e) of sub-section (1) to Section 13, it is apparent that the primary burden to bring home the charge of criminal misconduct thereunder would be indubitably on the prosecution to establish beyond reasonable doubt that the public servant either himself or through anyone else had at anytime during period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on the discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence. In other words, in case the prosecution fails to prove that the public servant either by himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income, he would not be required in law to offer any explanation to satisfactorily account therefor. A public servant facing such charge, cannot be comprehended to furnish any explanation in the absence of the proof of the allegation of being in possession by himself or through someone else, of pecuniary else, of pecuniary resources of property disproportionate to his known sources of income. Vasant Rao Guhe v. State of M.P., (2017) 14 SCC 442.

 

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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.

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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.

 

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Misconduct of Arbitrator

If the Arbitrator decides the matter, which are excluded by the agreement, he commits a misconduct. It comprises a legal misconduct, which is completed if the Arbitrator on the face of the award arrives at an inconsistent conclusion even on his own finding or arrives at a decision by ignoring very material documents which throw abundant light on the controversy to help a just and fair decision. It is in this sense that the Arbitrator could misconduct the proceedings in a case. Further, an award could be set aside if it is improperly procured or is otherwise invalid. Misconduct means a legal misconduct in the judicial sense arising from some honest, erroneous, breach and neglect of duty and responsibility on the part of Arbitrator causing miscarriage of justice. U.P. State Sugar Corporation Ltd. v. M/s Lal and Kumar, 2014 (4) ESC 2168.

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