Search By Topic: Service Matters

251. (SC) 14-07-2022

A. Constitution of India, Article 32, 226 -- Judicial review -- Action against employee -- Opinion of Authority – Doctrine of reasonableness -- Where an Act or the statutory rules framed thereunder left an action dependent upon the opinion of the authority concerned, by some such expression as ‘is satisfied’ or ‘is of the opinion’ or ‘if it has reason to believe’ or ‘if it considered necessary’, the opinion of the authority is conclusive, (a) if the procedure prescribed by the Act or rules for formation of the opinion was duly followed, (b) if the authority acted bona fide, (c) if the authority Itself formed the opinion and did not borrow the opinion of somebody else and (d) if the authority did not proceed on a fundamental misconception of the law and the matter in regard to which the opinion had to be formed -- Courts will not readily defer to the conclusiveness of the authority’s opinion as to the existence of matter of law or fact upon which the validity of the exercise of the power is predicated -- Doctrine of reasonableness thus may be invoked -- Where there are no reasonable grounds for the formation of the authority’s opinion, judicial review in such a case is permissible.

(Para 28-30)

B. Constitution of India, Article 32, 226 -- Judicial review -- Action against employee -- Opinion of Authority – Court can inquire whether the facts and circumstances so found to exist have a reasonable nexus with the purpose for which the power is to be exercised.

(Para 34)

C. Constitution of India, Article 32, 226 -- Judicial review -- Action against employee -- Opinion of Authority – Court can interfere if the constitutional or statutory term essential for the exercise of the power has either been misapplied or misinterpreted -- The Courts have always equated the jurisdictional review with the review for error of law and have shown their readiness to quash an order if the meaning of the constitutional or statutory term has been misconstrued or misapplied.

(Para 35)

D. Constitution of India, Article 32, 226 -- Judicial review -- Action against employee -- Opinion of Authority – It is permissible to interfere in a case where the power is exercised for improper purpose -- If a power granted for one purpose is exercised for a different purpose, then it will be deemed that the power has not been validly exercised.

(Para 36)

E. Constitution of India, Article 32, 226 -- Judicial review -- Action against employee -- Opinion of Authority – Grounds which are relevant for the purpose for which the power can be exercised have not been considered or grounds which are not relevant and yet are considered and an order is based on such grounds, then the order can be attacked as invalid and illegal -- On the same principle, the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question.’

(Para 37)

F. Constitution of India, Article 32, 226 -- Assam Rifles Regulation, 2016, Regulation 107(c), 108 – Assam Rifles Manual, Rule 24 – Four red ink entries – Discharge from service -- Entry 1 (1996) For staying back to take care of his ailing mother – ‘without sufficient cause over staying leave granted’. Sentenced to 14 days of rigorous imprisonment with deduction in salary -- Entry 2 (1998) For being on the way out to make a phone call, but stopped before he could leave the compound – “visited out of bound areas as specified in unit BRO Part I Ser No 202 dated 30 Aug 96 without permission from his superior officers”. Sentenced to 28 days of rigorous custody and 14 days of Military Custody -- Entry 3 (1999) For losing his luggage while coming back from home – “lost his identity card bearing machine No. 078550 by neglect the property of the Government issued to him for his use”. Sentenced to 28 days of rigorous imprisonment and 14 days of detention in AR custody -- Entry 4 (2004) For playing cards all alone by himself – ‘to obey unit standing orders and was found Gambling in unit line’. Sentenced to 28 days of rigorous imprisonment and 14 days of fine -- Having regard to the nature of the misconduct alleged against the appellant, ends of justice would be met if order of discharge set aside and treat the appellant to have been in service till the time, he could be said to have completed the qualifying service for grant of pension – Nothing on record to indicate that the nature of the misconduct leading to the award of four Red Ink entries was so unacceptable that the competent authority had no option but to direct his discharge to prevent indiscipline in the force -- Order of discharge against the appellant set aside -- Benefit of continuity of service for all other purpose shall be granted to the appellant including pension.

(Para 39, 40)

260. (SC) 05-05-2022

A. Constitution of India, Article 14 -- Additional explanation -- State must not be allowed to bring in additional explanation to justify their actions when those are conspicuous by their absence, in the government decision.

(Para 26)

B. Constitution of India, Article 14, 16(1) – Doctrine of legitimate expectation -- Intelligible differentia -- Contention that the +2 lecturers have no semblance of similarity with the BSES, to enable assimilation into the BES -- No intelligible differentia could be pointed out by the state’s counsel to sustain such arbitrary classification between +2 lecturers and the BSES secondary level teachers, posted in government schools -- High Court declared that the +2 lecturers, both in the Government and the nationalized (taken over) secondary schools, appointed pursuant to Advertisement No.1/87, have always been part of the Bihar Subordinate Education Service (“BSES”) and thereby, they are entitled to be merged with the Bihar Education Service Class II (“BES”), pursuant to the Government decision dated 07.07.2006 – Manifest departure smacks of arbitrariness and the government action, to selectively protect the interest of the BES cadre, does not conform to rules of justice and fair play -- Where the substantive legitimate expectation is not ultra vires the power of the authority and the court is in a position to protect it, the State cannot be allowed to change course and belie the legitimate expectation of the respondents -- Regularity, Predictability, Certainty and Fairness are necessary concomitants of Government’s action and the Bihar government failed to keep to their commitment by the impugned decision, which was rightly interdicted by the High Court – Appeal by State dismissed.

(Para 2, 27, 33, 34, 38)

262. (SC) 02-05-2022

A. Constitution of India, Article 14 – Excess payment to employee – Recovery thereof -- If the excess amount was not paid on account of any misrepresentation or fraud or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable – Relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered -- If it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.

(Para 9)

B. Constitution of India, Article 14 – Excess payment to employee – Recovery thereof -- Not a case of misrepresentation or fraud played by the appellant-employee -- Appellant retired on 31.03.1999 -- Case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General – Held, attempt to recover the said increments after passage of ten years of his retirement is unjustified -- Appeal allowed, recovery notice set aside.

(Para 14-16)

281. (SC) 02-08-2021

A. Rules of Court, 1952, Chapter III, Rule 1 -- Administrative Committee – Decision of – Scope of – For the convenience of transacting administrative business and for smooth functioning of day-to-day matters pertaining to control over the subordinate judiciary, it would be possible for the High Court to authorize and empower an Administrative Judge or an Administrative Committee of Judges to act on behalf of the Court -- It was in the context of such specific authorization in favour of the Administrative Committee in terms of Rule 1 of Chapter III of Rules of Court, 1952, framed by the High Court, that the recommendations made by the Administrative Committee were found to be without any constitutional infirmity -- It does not however mean that even in the absence of Rules authorizing or empowering the Committee, the decision made by or conclusions arrived at by the Committee would be binding on the Full Court or that the Full Court would not be within its jurisdiction to take a different view in the matter.

(Para 11, 12)

B. Haryana Civil Services (Punishment and Appeal) Rules, 1987, Rule 4(1)(viii) -- [Corresponding Rule 4(b)(v) of the Haryana Civil Services (Punishment and Appeal) Rules, 2016] – Compulsory retirement of Addl. Session Judge – Gravity of the matter and standards of ethics required -- Retaining huge amounts of cash in hand for the substantial periods in the financial years concerned, after admitting the withdrawals and deposits from the accounts specified in the Articles of Charge, which required no further proof -- Full court recommending compulsory retirement -- Considering the facts and circumstances on record and in view of the record indicating that there were multiple transactions showing deposits and withdrawals of substantial amounts of money, it cannot be said that the Full Court was not justified in taking the view that it did.

(Para 5-13)