Tag Archives: natural justice

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.

Advertisements

Leave a comment

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.

Leave a comment

Filed under Compulsory Retirement, 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

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

Reinstatement of an Employee

As per Shorter Oxford English Dictionary, Vol. 2, 3rd Edition, the word “reinstate” means to reinstall or re-establish (a person or thing in a place, station, condition, etc.) ; to restore to its proper or original state; to reinstate afresh and the word “reinstatement” means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edition, the word “reinstate” means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word “reinstatement” means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam-Webster Dictionary, the word “reinstate” means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black’s Law dictionary, 6th Edition, “reinstatement” means:”to reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed.”
The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter’s source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments. Deepali Kundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324.

Leave a comment

Filed under Reinstatement