CCA (CCA) Rules Commentary

THE CENTRAL CIVIL SERVICES

(CLASSIFICATION, CONTROL & APPEAL)

RULES, 1965

R.1

PART I

GENERAL

1. Short title, extent and commencement:— (1) These Rules

may be called the Central Civil Services (Classification, Control and

Appeal) Rules, 1965.

(2) They shall come into force on the 1st

December, 1965.

COMMENTARY

S Y N O P S I S

1. These rules have been made by the President under Article 309.. ...................................... 3

2. Rules whether could only be issued under the signature of the

President ........................................................................................................................... ..3

3. Powers to make Rules ........................................................................................................ 3

4. Legislative competence ..................................................................................................... .3

5. Legislative character .......................................................................................................... 4

6. Article 309 of Constitution an enabling provision.............................................................. 4

7. Application of Art. 309 to the civilians working in the defence service ............................ 4

8. Not obligatory to make rules .............................................................................................. 4

9. Rules in a State ................................................................................................................... 5

10. Rules for Union Territories under Article 309 ................................................................... 5

11. Rules may lay down conditions of service and recruitment ........................................... …5

(i) “Conditions of Service”, meaning of ............................................................ 5

(ii) Service conditions — change in .................................................................... 6

(iii) Conditions of service can vary from post to post and service to service ........ 6

(iv) Rules relating to conditions of service of officers and servants of a High

Court and seniority of officers of judicial service ........................................... 7

(v) Rules should be reasonable, fair and not grossly unjust ................................. 7

(vi) Service conditions end on merger of State ..................................................... 7

2 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.1

12. Rules subject to judicial scrutiny ....................................................................................... 8

13. Entry into service ............................................................................................................... 8

14. Rules not to impinge upon pleasure of President or Governor ........................................... 8

15. Rules issued with approval ................................................................................................. 8

16. Rules under Police Act ....................................................................................................... 8

17. Rules cannot nullify protection given by Statute ................................................................ 9

18. Rules not to curtail rights guaranteed by Article 311 ......................................................... 9

19. Rules with retrospective operation ..................................................................................... 9

20. Rules —

(i) Interpretation of ........................................................................................... 10

(ii) Where two constructions possible ................................................................ 10

(iii) Harmonious Construction ............................................................................. 10

(iv) Notes to the rules .......................................................................................... 10

(v) Proviso to a rule ............................................................................................ 11

(vi) Clarification of the Rules .............................................................................. 11

(vii) Mandatory and directory .............................................................................. 11

(viii) Rule of procedure ......................................................................................... 12

21. Rules, unilateral alteration of .......................................................................................... 13

22. Rules cannot be altered or amended by administrative or executive instruction .............. 13

23. Rules cannot be modified by executive orders ................................................................. 13

24. Relaxation of Rules .......................................................................................................... 14

25. Validity of rule cannot be affected by reason of inconsistency with prior executive

order —

(i) Gaps in rules, filling by administrative or executive instructions ................. 14

(ii1 Breach of executive or administrative instructions ....................................... 14

26. Administrative or executive instructions

(i) Where no rules.............................................................................................. 15

(ii) Administrative/Executive instruction cannot modify rule ............................ 15

(iii) Administrative/Executive Instructions or Directives contrary to Rules

made under Article 309 ................................................................................ 15

(iv) Do confer rights and duties ........................................................................... 15

(v) Publication of .............................................................................................. 15

(vi) With retrospective effect .............................................................................. 16

27. Administrative instructions and Rules & Regulations, distinction between .................... 16

28. Supplemental instructions not to be inconsistent with rules ............................................. 17

29. Letter/memorandum whether has status of no rule ........................................................... 17

30. Instructions by Governor, do not become service rules .................................................... 17

31. Presidential Resolution, Power of Government to override ............................................. 17

R.1] GENERAL 3

32. Rules in force immediately before commencement of Constitution ................................. 17

33. Rules and Regulations by Public Undertakings and statutory bodies ............................... 17

34. Repeal of Rules ................................................................................................................ 18

35. Strict compliance of rules is required ............................................................................... 18

1. These Rules have been made by the President under Article 309 —These

Rules have been made by the President under Article 309 of the Constitution of India

and they can, therefore, operate only within the scope of Article 309 and cannot travel

beyond its ambit. Jai Nath Wanchoo v. Union of India, AIR 1970 Bom 189: 1972 Bom

LR 51: ILR 1970 Bom 887.

See also Gaya Pandey v. State of Bihar, 1973(1) SLR 1; Sagli Ram Randhir

Singh v. Union of India, 1975(2) SLR 379: 1976 SLJ 77; B.S. Yadav v. State of

Haryana, 1981(1) SCR 1024: AIR 1981 SC 561: 1980 Supp SCC 524: 1981 Lab IC

104: 1981(1) LLN 235: 1981(1) LLJ 280: 1980(3) SLR 591: 1981 SCC (Lab) 343:

1981(1) SCWR 310: 1981(2) SCJ 137. and S. Surjit Singh v. Union of India, 1975(1)

SLR 424: 1975 SLJ 110; State of U.P. v. Chandra Mohan Nigam, 1977 SCJ 633;

1978(1) SLR 12 (SC); Union of India v. Ranjit Singh Grewal, 1980(3) SLR 256. See

also State of U.P. v. Shri Krishna Pandey, AIR 1996 SC 1656: 1996(9) SCC 395:

1996(2) SLR 518: 1996 SCC (L&S) 1250.

2. Rules Whether could only be issued under the Signature of the

President— The orders made by the President instead of being signed by the President

personally are authenticated by officers under Article 77(2) to show that they are

executed by the President himself. This is why the orders are expressed to be made by

the President. An order or instrument which is duly authenticated cannot be called in

question on the ground that it is not an order or instrument made or executed by the

President. D.S. Sharma v. Union of India, AIR 1970 Delhi 250: 1971(1) SLR 44.

3. Powers to make Rule — Article 309 of the Constitution of India

provides:— “Subject to the provisions of this Constitution, Acts of the appropriate

Legislature may regulate the recruitment, and conditions of service of persons

appointed, to public services and posts in connection with the affairs of the union or of

any State.

Provided that it shall be competent for the President or such person as he may

direct in the case of services and posts in connection with the affairs of the Union, and

for the Governor of a State or such person as he may direct in the case of services and

posts in connection with the affairs of the State, to make rules regulating the

recruitment, and the conditions of service of persons appointed, to such services and

posts until provision in that behalf is made by or order an Act of the appropriate

Legislature under this Article, and any rules so made shall have effect subject to the

provisions of any such Act.”

4. Legislative Competence — It is within the competence of the Legislature to

enact law governing the recruitment and the conditions of the service of its employees.

However, till the enactment of such a law and so far as no law may have been passed


the recruitment and conditions of service can be validly regulated by the rules framed

by the President or such person as he may direct in the case of services and posts in

connection with the affairs of the Union, and by the Governor of a State or such person

as he may direct in the case of services and posts in connection with the affairs of the

State concerned. In case of any conflict between the legislative enactment and the rules

framed under the proviso to Article 309, the legislative enactment will prevail. As long

as there is neither any legislative enactment nor any statutory rules framed by the

President or the Governor, the conditions of service and other matters relating to their

employees can be regulated by the issuance of administrative instructions in exercise of

the executive powers of the Government concerned. Harkishan Singh v. Punjab State,

1969 Cur LJ 833; B.S. Vadera v. Union of India, AIR 1969 SC 118: 1969 SLR 6:

1969(1) SCJ 73: 1969 Lab IC 100: 1970(1) LLJ 499: 1968(17) FJR 411: 1968(2) SCA

597: 1969(1) SCWR 182: 1968 SCD 1120; Gaya Prasad Pandey v. State of Bihar,

1973(1) SLR 1; N. Lakshmana Rao v. State of Karnataka, 1975 SLJ 560: AIR 1975 SC

1646: 1975(2) SLR 272: 1976(2) SCC 502: 1975 Lab IC 1121: 1975 SLJ 560: 1975(31)

FLR 44: 1975(2) LLJ 87: 1975(2) SCWR 236; Parmeshwar Dayal v. State of M.P.,

1977 SLJ 284: 1978(1) SLR 142.

See also State of Tamil Nadu v. K. Subanayagam, AIR 1998 SC 344: 1998(1)

SCC 318: 1997(9) JT SC 316: 1998(1) SLT 137: 1998(1) SLR 28 (SC).

5. Legislative character — Rules made under Article 309, proviso, of the

Constitution are legislative in character. Raj Kumar v. Union of India, AIR 1975 SC

1116: 1975(4) SCC 13: 1975(1) SLR 774: 1975 Lab IC 669: 1975 SLJ 615: 1975(30)

FLR 370: 1975 SCC (Lab) 198; Dr. Jagmohan Singh v. State of Punjab, 1980(3) SLR

400. A Memorandum under F.R.56 has also statutory force. Premdhar Baruha v. State

of Assam, AIR 1970 SC 1314: 1971(1) SCR 503: 1970(2) SCC 211: 1970 SLR 529:

1970 Lab IC 1067, (case relating to age of superannuation).

6. Article 309 of Constitution an Enabling Provision — The provisions of

Article 309 are merely enabling provisions and they do not impose any duty to legislate

or make rules nor, in the absence of such legislation or rules, do they fetter the power of

any State Government to exercise its executive power in the matter of its services. A.

Laxmandas v. State of M.P., AIR 1970 MP 189.

7. Application of Art. 309 to the civilians working in the defence service —

Held that employees serving in Defence can not claim any protection under Art. 311 of

the Constitution and CCS(CCA) Rules, 1965, which have been framed under Art. 309

and subject to Art. 311. Union of India v. Indrajit Datta, 1995 Supp (3) SCC 229:

1995(5) SLR 228.

8. Not Obligatory to make Rules — (i) It is not obligatory upon Government

to make rules regarding matters pertaining to service under the Government. Mallinath

Jain v. Municipal Corpn., Delhi, 1973 SLJ 239: 1973(1) SLR 413; Hardwari Lal v.

Divisional Engineer, Telegraphs, 1972 SLR 279.

(ii) It is not obligatory under the proviso to Article 309 to make rules of

recruitment etc. before a service can be constituted, or a post created or filled. Swaran

Lata v. Union of India, 1979 SLJ 170: 1979(1) SLR 710; Smt. Maria T.S. da P. Morais

R.1] GENERAL 5

Almeida v. Union of India, 1982(1) SLJ 136. Same applies to promotion. Sant Ram v.

State, AIR 1967 SC 1916: 1967(3) SCR 595.

9. Rules in a State — Under Article 309 of the Constitution the Governor of a

State or such person as he may direct can make rules regulating the recruitment and

conditions of service of persons appointed to services and posts in connection with the

affairs of the State until provision in that behalf is made by or under an Act of an

appropriate Legislature. B.S. Vadera v. Union of India, AIR 1969 SC 118: 1969 SLR 6:

1969(1) SCJ 73: 1969 Lab IC 100: 1970(1) LLJ 499: 1968(17) FJR 411: 1968(2) SCA

597: 1969(1) SCWR 182: 1968 SCD 1120; (1969)3SCR575 Gaya Prasad Pandey v.

State of Bihar, 1973(1) SLR 1.

10. Rules for Union Territories under Article 309 — The President acting

under the proviso to Article 309, can make rules regulating the recruitment and the

conditions of service, of the persons appointed to public services and posts in the Union

Territories. Sagli Ram Randhir Singh v. Union of India, 1975(2) SLR 379: 1976 SLJ 77.

11. Rules may lay down conditions of service and recruitment — Rules

under Article 309 are for the purpose of laying down the conditions of service and

recruitment. R.N. Nanjundappa v. T. Thimmiah, 1972(2) SCR 799: 1972(1) SCC 409:

AIR 1972 SC 1767: 1972 Lab IC 618: 1972(1) LLJ 565: 1973(2) SCJ 265: 1972 SLR

94; V.R. Shambulinga v. State of Karnataka, 1980(2) SLR 413.

(i) “Conditions of service” meaning of — All those conditions which regulate

the holding of a post by a person right from the time of his appointment till his

retirement and even beyond it in matters like pension etc. State of M.P. v. Shardul

Singh, 1970(3) SCR 302: 1970(1) SCWR 65: 1970 SLR 101: 1970(2) SCJ 442: 1970(1)

SCC 108.

See also State of Maharashtra v. Chandrakant Anant Kulkarni, AIR 1981 SC

1990: 1982(1) SCR 665: 1981(4) SCC 130:1981(2) SLJ 280: 1982(1) SLR 697

(SC).1981 Lab IC 1568: 1981(2) LLJ 433: 1981 SCC (Lab) 562.

The expression “condition of service” has a very wide import and covers many

topics, for example, period of probation, confirmation, leave, travelling allowance,

pay, promotion, gratuity etc. Parmeshwar Dayal Ram Pandey v. State of M.P., 1978(1)

SLR 142; Lily Kurian v. Sr. Lawina, 1978 Lab IC 1644: AIR 1979 SC 52: 1979(1) SLR

26. Seniority is a condition of service. B.S. Yadav v. State of Haryana, 1981(1) SCR

1024: AIR 1981 SC 561: 1980 Supp SCC 524: 1981 Lab IC 104: 1981(1) LLJ 280:

1980(3) SLR 591: 1981(1) SCWR 310: 1981(2) SCJ 137.

Condition of service would include the age of superannuation. State of Bihar v.

Yogendra Singh, AIR 1982 SC 882: 1982(1) SCC 664: 1982(1) SCJ 303: 1982(1) SLR

683 (SC): 1982(44) FLR 281: 1982(1) SLJ 580:1982(1) SCJ 303: 1982 BBCJ (SC) 114:

1982 BLJ 374: 1982 BLJR 447: 1982 Pat LJR (SC) 75.

Even as a right to receive pension, although accruing on retirement, is a

condition of service, so also the right to the payment of the cash equivalent of leave

salary for the period of unutilised leave accruing on the date of retirement must be


considered as a conditions of service. Union of India v. Gurnam Singh, AIR 1982 SC

1265: 1982(2) SCC 314: 1982(2) SLR 131 (SC): 1982(44) FLR 391: 1982(1) SLJ 630.

(ii) Service Conditions : Change in — The conditions of service can be

changed in exercise of the powers contained in Article 309 of the Constitution. C.

Sankara Narayanan v. State of Kerala, 1971(2) SCWR 5: AIR 1971 SC 1997: 1971(2)

SCC 361: 1971 Lab IC 1178: 1971 Ker LT 422: 1971 Lab IC 1178: 1971 SCD 861;

M.M. Bindra v. Union of India, 1973(1) SLR 928. A rule which merely affected

chances of promotion cannot be regarded as varying a condition of service. Mohammad

Shujat Ali v. Union of India, AIR 1974 SC 1631: 1974(2) SLR 508: 1975(3) SCC 76:

1974 Lab IC 1103: 1976(2) LLJ 115: State of Maharashtra v. Chandrakant Anant

Kulkarni, AIR 1981 SC 1990: 1982(1) SCR 665: 1981(4) SCC 130: 1981(3) SLR 326:

1981(2) SLJ 280: 1982 (1) SLR 697 (SC): 1981 Lab IC 1568: 1981(2) LLJ 433, Union

of India v. Colonel Shyam Kumar, 1982(2) SLR 487.

Power to regulate conditions of service is wide enough to include to constitute

new cadre by merging certain existing cadre. S.P. Shivprasad Pipal v. Union of India,

1998(4) SCC 598: AIR 1998 SC 1882: 1998(3) JT 216: 1998(2) SLR 781: 1998(79)

FLR 384: 1998(3) SLJ 108: 1998(2) LLJ 483: 1998 Lab IC 1873: 1998(3) LLN 4.

The service conditions pertaining to seniority are liable to alteration by

subsequent changes that may be introduced in the rules and except to the extent of

protecting promotions that have already been earned under the previous rules, the

revised rules will operate to govern the seniority and future promotion prospects of all

the persons in the concerned service. Wg. Commander J. Kumar v. Union of India

1982(1) SLJ 452: 1982(1) SLR 715 (SC): 1982 Lab IC 1586: AIR 1982 SC 1064.:

1982(2) SCC 116: 1982 Lab IC 1586: 1982(1) SLJ 452.

If the service conditions of particular set of employees are governed by a

statute, then they could only be altered or amended by another statute and in case they

are governed by statutory rules, then the service conditions of such employees can be

altered only by a statute or statutory rules. But administrative instructions cannot alter

or modify the conditions of service of those employees, who are governed by a statute

or statutory rules. Dule Singh v. Municipal Council, AIR 1977 SC 101: 1978 SLJ 116:

1977(2) SCR 677: 1977(1) SCC 42: 1976 SLJ 721: 1976 Lab IC 1786: 1977(1) LLJ 64.

(iii) Conditions of Service can vary from Post to Post and Service to

Service — It is settled that conditions of service need be uniform in all services. They

can vary from post to post and from service to service. A.I.S.M”s Association v. G.M.

Central Railway, AIR 1960 SC 384; Kishori v. Union of India, AIR 1962 SC 1139; U.S.

Menon v. State of Rajasthan, AIR 1968 SC 81; State of U.P. v. S.M. Banerji, 1974(2)

SLR 499: 1974 ALJ 237. See also R.B. Jeevan Lall v. Municipal Board, 1997(1) SLR

292 Cal.

Where posts fell vacant prior to amendment of Rules the same have to be filled

up in accordance with the un-amended Rules. Guneeta Chadha v. Union of India,

2001(1) SLR 9 P&H (DB). But The vacancies which occurred prior to the amendment

of the Rules would be governed by the original Rules and not by the amended Rules.

R.1] GENERAL 7

State of Rajasthan v. R. Dayal, 1997(10) SCC 419: 1997(3) JT 198: 1997(2) SLR 68:

1997(1) UJ 479: 1998(1) SLJ 119.

In one case amendment in rules was made during the process of appointment

but the letter of appointment also making appointment on the scale of pay as per the

amended rules. It was held that the incumbent cannot claim to be governed by the

earlier rules which were in force at the time of his appearance in competitive

examination. H.S. Grewal v. Union of India, 1997(11) SCC 758: 1997(7) JT 594:

1997(5) SLR 278: 1998(1) SLJ 259.

The Government service originates from a contract but on appointment the

Government servant acquired a status subject to rights and obligations governed by

statute or statutory rules. Therefore the amendment in the rules affect not only the

persons who join service after amendment of Rules but all the persons in service at the

time of amendment. Government of Andhra Pradesh v. Syed Yousuddin Ahmed, AIR

1997 SC 3439:1997(7) SCC 24: 1997(7) JT 395: 1997(5) SLR 219: 1998(1) SLJ 91:

1997 Lab IC 3361.

(iv) Rules Relating to Conditions of Service of Officers and Servants of a

High Court and Seniority of Officers of Judicial Service — The approval of the

Governor is confined only to such rules as relate to salaries, allowances, leave or

pension. All other rules in respect of conditions of service do not require his approval.

M. Gurumoorthy v. Accountant General, Assam, 1971(2) SLR 434: AIR 1971 SC 1850:

1971 (2) SC 137: 1971(2) LLJ 109: 1971 Assam LR 42 (SC); also see T. Gopala

Krishna Murthy v. State of A.P., 1973 SLJ 635.

Power to frame rules regarding seniority of officers in the judicial service of

the State is vested in Governor and not in the High Court. B.S. Yadav v. State of

Haryana, 1981(1) SCR 1024: AIR 1981 SC 561: 1980 Supp SCC 524: 1981 Lab IC

104: 1981(1) LLJ 280: 1980(3) SLR 591:1981(1) SCWR 310: 1981(2) SCJ 137.

(v) Rules should be Reasonable, Fair and not Grossly Unjust — There is no

denying the fact that the rules regulating the conditions of service are within the

executive power of the State or its legislative power under the proviso to Article 309 of

the Constitution but even so, such rules have to be reasonable, fair and not grossly

unjust, if they are to survive the test of Articles 14 and 16 of the Constitution. State of

U.P. v. Ram Gopal Shukla, AIR 1981 SC 1041: 1981(3) SCC 1: 1981(2) SLR 3:

1981(1) SLJ 663 (SC): 1981(2) LLN 16:1981(1) LLJ 494: 1981 All LJ 450.

(vi) Service Conditions end on merger of State — When one State is

absorbed in another whether by accession, conquest, merger or integration, all contracts

of service between the prior Government and its servants automatically terminate,

thereafter those, who elect to serve in the new State and are taken on by it, serve on

such terms and conditions as the new State may choose and that this is nothing more

than an application of the principle that underlines the law of master and servant, when

there is a change of masters. Rajvi Amar Singh v. State of Rajasthan, AIR 1958 SC 228:

1958 SCR 1013: 1958 SCJ 420. See also B.S. Vadera v. Union of India, AIR 1969 SC

118: 1969(1) SCJ 73: 1969 SLR 6.


12. Rules Subject to Judicial Scrutiny — (a) Rules under Article 309 proviso

are subject to Judicial scrutiny and may be struck down if inconsistent with Articles 310

and 311. State of U.P. v. Babu Ram Upadhaya, AIR 1961 SC 751; Collector of Customs

v. Md. Habibul Haque, 1973(1) SLR 321; Vishwanath Verma v. State of M.P., 1977(1)

SLR 1053.

Accordingly a rule regulating the scope and content of the doctrine of

reasonable opportunity (Article 311) can be judicially scrutinised. State of U.P. v. Babu

Ram Upadhaya, AIR 1961 SC 751.

Rules can also be scrutinised with reference to fundamental rights, such as right

to equality under Article 14. Dasarath Rama Rao v. State of A.P., AIR 1963 SC 564;

State of U.P. v. Ramgopal Shukla, AIR 1981 SC 1041: 1981(3) SCC 1: 1981(2) SLR 3:

1981(1) SLJ 663 (SC): 1981(2) LLN 16: 1981(1) LLJ 494: 1981 All LJ 450: 1981

SCC(Lab) 464: 1981(2) SCWR 94.

(b) Right to equality in employment. Amarjit Singh Ahluwalia v. State of

Punjab, AIR 1975 SC 984: 1975(1) SLR 171: 1975 SLJ 220: 1975 Lab IC 613.

13. Entry into Service — A rule governing entry into service (to bar entry by

promotion) cannot form part of “conditions of service”. Anoop Singh Gill v. State of

Punjab, 1983(1) SLJ 532: 1983(1) SLR 602(P&H).

14. Rules not to Impinge upon Pleasure of President or Governor — Any

provision in the Rules which impinges upon the pleasure of the President or the

Governor under Article 310 except to the extent the same is curtailed by Article 311

would not be operative. Jai Nath Wanchoo v. Union of India, AIR 1970 Bom 180; S.

Surjit Singh v. Union of India, 1975(1) SLR 424: 1975 SLJ 110; State of U.P. v.

Chandra Mohan Nigam, 1977 SLJ 633: 1978(1) SLR 12 (SC): 1978(1) SCR521; Union

of India v. Ranjit Singh Grewal, 1980(3) SLR 256. See Kunjappan v. Cochin Port

Trust, 1997(1) SLR 242 Ker (DB).

Under the proviso to Article 309 a law can be made or a Rule can be framed, as

the case may be, prescribing the procedure by which and the authority by whom, the

said pleasure can be exercised; and obviously a law or Rule so made cannot be treated

as impinging upon, or curtailing the pleasure of the President or the Governor under

Article 310. V.Y. Thomas v. Commandant, A.D.C. Centre, 1982 Lab IC 632: 1982 (2)

SLR 39 (AP).

15. Rules Issued with Approval — Rules were issued with the approval of

Governor. It cannot be said that Governor had delegated his power. Bhuban Chandra

Dutta v. Accountant General, AIR 1970 Assam 26.

16. Rules under Police Act — Under Section 12 of Police Act, 1861 power to

make rules conferred on the Inspector-General of Police is subject to approval of State

Government, Chief Commissioner, Manipur who was also the Inspector General of

Police, Manipur framed rules, but approval of the State Government was not obtained.

It was held that from the mere fact that the I.G. Police was simultaneously holding the

office of the Chief Commissioner, approval could not be presumed, the rules were void.

Superintendent of Police, Manipur v. R.K.T. Singh, 1983(3) SLR 550(SC).

R.1] GENERAL 9

17. Rules cannot nullify Protection Given by Statute — A protection given

to an employee by the statute cannot be nullified by Rules made under the statute.

Management of D.T.U. v. B.B.L. Hajelay, AIR 1972 SC 2452: 1972 SLR 787: 1973

SLJ 19.

18. Rules not to Curtail Rights Guaranteed by Article 311 — In Moti Ram

Deka v. General Manager, N.E.F. Railway, AIR 1964 SC 600: 1964(5) SCR 638, which

is the leading case on the meaning of “dismissal” and “removal”, it was held that rules

cannot trespass upon or curtail the rights guaranteed by Article 311 of the Constitution.

Thus an authority subordinate to the appointing authority cannot be authorised to

dismiss a civil servant. Balak Das v. Astt. Security Officer, AIR 1960 MP 183.

19. Rules with Retrospective Operation — (i) It is a settled law that unless a

statute conferring the power to make rules provides for the making of rules with

retrospective operation, the rules made pursuant to that power can have prospective

operation only. An exception, however, is the proviso to Article 309. Rules framed

under the proviso to Article 309 of Constitution could have retrospective operation. B.S.

Vadera v. Union of India, 1969(1) SCJ 73: AIR 1969 SC 118: 1969(3) SCR 575: 1969

SLR 6; Zabar Singh v. State of Haryana, AIR 1972 SC 1972: 1973(2) SCJ 40: 1972

SLR 486; Raj Kumar v. Union of India, AIR 1975 SC 1116: 1975(4) SCC 13: 1975(1)

SLR 774: 1975 Lab IC 669: 1975 SLJ 615: 1975(30) FLR 370: 1975 SCC (Lab) 198;

Dei Chand Phaugat v. State of Haryana, 1980(2) SLR 391 (FB); Accountant General v.

S. Doraiswamy, 1980(3) SLR 538: AIR 1981 SC 783. Therefore rules framed under

Article 309 can be given retrospective effect. G. Nagendra v. State of Karnataka,

1998(9) SCC 439: 1998(8) JT 134(2): 1999(81) FLR 24. By amending the provision of

law retrospective operation could be given to the Rules. However, retrospective

operation of service rules could not be given by mere Executive instructions. Where the

Rules framed by the Society are not statutory rules and they can be amended by a

resolution of the competent body and any legislation or framing of rules under Article

309 of the Constitution is not required. I.C.A.R. v. Satish Kumar, 1998(4) SCC 219:

AIR 1998 SC 1782: 1998(3) JT 9: 1998(2) SLR 808: 1998(3) SLJ 155: 1998

Lab IC 1596.

(ii) Rules under Article 309 of Constitution which have to come into force

retrospectively are in the nature of things likely to take away vested rights. Dr.

Jagmohan Singh v. State of Punjab, 1980(3) SLR 400 Punjab.

(iii) No subordinate or delegated authority can frame rules or regulations

having retrospective effect unless there is power in any statute or statutory rules

entitling the executive government or any of its agencies to pass orders with

retrospective effect. K.D. Vasudeva v. Union of India, 1971(2) SLR 487; Abdul Gani

Bhat v. State, 1976 SLJ 71: 1976 Lab IC 68; Gaya Prasad Pandey v. State of Bihar,

1973(1) SLR 1, it was held that such person as Governor may direct can also make rules

retrospectively. Enforcement with retrospective effect of non-statutory rules for

recruitment resulting in obviating the chances of promotion was held to contravene

Articles 14 and 16(1) of the Constitution. Kamal Mukherji v. Union of India, AIR 1970

Cal 250.


(iv) Even though State has power to frame rules under Article 309 with

retrospective effect, such rules have to be reasonable and fair and not unjust or arbitrary

if they are to survive under the test of Articles 14 and 16 of the Constitution. M.D.

Deshmukh v. Union of India, 1982(2) SLJ 623.

20. Rules: (i) Interpretation of — The Rules of Statutory Interpretation or the

Rules of a subordinate legislation, including Rules made under Article 309 of the

Constitution, dos not empower any judicial or quasi-judicial body to apply the law to a

situation or object which was not contemplated by the legislature while making a law,

or by the Government while making the rule. B.N. Sinha v. Union of India, AIR 1998

SC 2600: 1998(3) SCC 157: 1998(4) JT 281: 1998(79) FLR 747: 1998 Lab IC 3100. It

is however a settled rule of law that the question of intention of the Legislature or the

rule making authorities is wholly immaterial in construing a statutory provision. Where

the language of the rule is plain and there is no ambiguity, in such a situation there can

never be any question of reading into the rule something which does not exist there.

Brij Mohan Singh v. State of Punjab, 1968 Cur LJ 801. No words should be considered

redundant or surplus in interpreting the provisions of a statute or a rule. Dinesh

Chandra Sangma v. State of Assam, AIR 1978 SC 17: 1978(1) SCR 607: 1977(4) SCC

441: 1978(2) SCJ 88: 1977 SLR 622: 1977 Lab IC 1852: 1978(1) SLR 25.

(ii) Where two Constructions Possible — One of the fundamental rules of

interpretation is that if the words of a statute are themselves precise and unambiguous,

no more is necessary than to expound those words in their natural and ordinary sense,

the words themselves in such case best declaring the intention of the legislature. Govind

Lal Chaggan Lal Patel v. Agriculture Produce Market Committee, AIR 1976 SC 263:

1975(2) SCC 482: 1976(1) SCR 451.

It is well recognised canon of construction that the construction which makes

the rule otiose or unworkable should be avoided where two constructions are possible

and the Court should lean in favour of the construction which would make the rule

workable and further the purpose for which the rule is intended. Dr. N.C. Singhal v.

Union of India, AIR 1980 SC 1255: 1980(3) SCR 44: 1980(3) SCC 29: 1980(2) SLR

118: 1980 SLJ 408: 1980 Lab IC 710; State of Kerala v. M.K. Krishnan Nair, AIR 1978

SC 747: 1978(2) SCR 864: 1978(1) SCC 552: 1978(2) SCJ 531: 1978(1) SLR 499 (SC).

(iii) Harmonious construction — When the rules legislative in character, they

must harmoniously be interpreted as a connected whole giving life and force to each

word, phrase and rule and no part thereof should be rendered nugatory or a surplusage.

Resort to iron out the creases could be had only when the construction of the relevant

rule, phrase or word would lead to unintended absurd results. Keshav Chandra Joshi v.

Union of India, AIR 1991 SC 284: 1992 Supp (1) SCC 272: 1990 Supp (2) SCR 573:

1990(2) Scale 951.

(iv) Notes to the Rules — The notes to the rules make explicit what is implicit

in the rules. Notes which are appended to the rules are of aid not only in applying the

rules but also in interpreting the true import of the rules. The real purpose of the notes

is that when rules are silent the notes fill up gaps. Tara Singh v. State of Rajasthan,

AIR 1975 SC 1487: 1975(3) SCR 1002: 1975(4) SCC 86: 1975 Lab IC 1046: 1975(1)

SLR 777: 1976 SLJ 619. When a note is in conflict with the rule, that has to be ignored.

R.1] GENERAL 11

Dr. R.V.N. Sinha v. State of Bihar, 1976(2) SLR 363. Where the provision of a rule is

clear, note cannot be utilised to whittle down what has been provided in the rule.

Narayan Chandra Halder v. Union of India, 1981(1) SLR 678.

(v) Proviso to a Rule — (i) It is well established rule of interpretation of

statute that a proviso cannot be so constructed as to eat away the rule to which it is

proviso. R.K. Gupta v. Delhi Administration, 1979 SLJ 121: 1979(1) SLR 785. The

Court should not so construe the proviso as to attribute an intention to the legislature to

give with one hand and take away with another. To put it in other words, a sincere

attempt should be made to reconcile the enacting clause and the proviso and to avoid

repugnancy between the two. Tahsildar Singh v. State of U.P., AIR 1959 SC 1012:

1959 CrLJ 1231: 1959 Supp (2) SCR 875: 1959 MLJ (Cri) 759: 1959 (2) Andh WR

(SC) 201.

A proviso cannot expand or limit the principle provision and it must be read

and considered in relation to the principal matter to which it is proviso and that it is not

a separate or independent enactment. Dwarka Prasad v. Dwarka Dass, AIR 1975 SC

1758: 1976(1) SCR 277: 1976(1) SCC 128: 1975 RCR 712: 1975 RCJ 593.

(vi) Clarification of the Rules — Normally, the Rules framed under the

proviso to Article 309, cannot be amended except in accordance with procedure laid

down therein. But in the instant case, the question was whether a clarification issued by

the Govt. could be construed as an amendment to the rules. Even under the rules, it is

specifically stated that a Degree or Diploma in Electrical Engineering from a

recognised university or its equivalent would be the requisite qualification for

promotion to the cadre of Executive Engineer. In the Rules, some of the recognised

universities are also mentioned and admittedly, these institutions are not awarding any

Diploma. The rules say that equivalent qualification also would be considered. There is

nothing wrong in the appointing authority issuing a clarification as to what would be

the equivalent qualification for the purpose of appointment. When the universities do

not offer the Diplomas prescribed under the Rules, the rule itself becomes meaningless

and nugatory. Under the Rules, the candidates are asked to produce a certificate which

is neither in existence nor awarded. It was at this juncture that the Govt. issued a

clarification that the Diploma awarded by recognised institutions, which are affiliated

to the State Board of Technical Education in Haryana, would be considered as

equivalent. Therefore the clarification was held to be valid. O.P. Lather v. Satish

Kumar Kakkar, AIR 2001 SC 821: 2001(3) SCC 110: 2001(2) JT 280.

(vii) Mandatory and directory — It is the substance that counts and must take

precedence over mere form. Some rules are vital and go to the root of the matter they

cannot be broken; others are only directory and a breach of them can be over-looked

provided there is substantial compliance with the rules read as whole an provided no

prejudice ensues; and when the legislature does not itself state which judges must

determine the matter and, exercising a nice discrimination, sort out one class from the

other along broad based, commonsense lines. Pratap Singh v. Shri Krishna Gupta, AIR

1956 SC 140: 1956 SCJ 143: 1955(2) SCR 1029.

The use of the word “shall” in a statute, though generally taken in a mandatory

sense, does not necessarily mean that in every case it shall have that effect, that is to


say, that unless the words of the statute are punctiliously followed, the proceeding or

the outcome of the proceeding, would be invalid. On the other hand, it is not always

correct to say that where the word “may” has been used, the statute is only permissive

or directory in the sense that non-compliance with those provisions will not render the

proceeding invalid.

The question as to whether a statute is mandatory or directory depends upon the

intent of the Legislature and not upon the language in which the intent is clothed. The

meaning and intention of the Legislature must govern, and these are to be ascertained,

not only from the phraseology of the provision, but also by considering its nature, its

design, and the consequences which would follow from construing it the one way or the

other. State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912: 1957 All LJ 921:

1958 Mad LJ: 1958 SCJ 150: 1958 SCR 533.

There is no doubt that the word “may” generally does not mean “must” or

“shall”. But it is well-settled that the word “may” is capable of meaning “must” or

“shall” in the light of the context. It is also clear that where a discretion is conferred

upon a public authority coupled with an obligation, the word “may” which denotes

discretion should be construed to mean a command. Sometimes, the Legislature uses the

word “may” out of deference to the high status of the authority on whom the power and

the obligation are intended to be conferred and imposed. State of Uttar Pradesh v.

Jogendra Singh, AIR 1963 SC 1618: 1963 All LJ 617: 1963(2) Lab LJ 444: 1964(2)

SCR 197. Therefore the word “may” is capable of meaning “must” or “shall” in the

light of the context and that where a discretion is conferred upon a public authority

coupled with an obligation, the word “may” which denotes discretion should be

construed to mean a command. Shri Rangaswami, The Textile Commissioner and others

v. The Sagar Textile Mills (P) Ltd., AIR 1977 SC 1516: 1977(2) SCC 578: 1977(2) SCR

825.

No general rule can be laid down for deciding whether any particular provision

in a statute is mandatory, meaning thereby that non-observance thereof involves the

consequence of invalidity or only director, i.e., a direction the non-observance of which

does not entail the consequence of invalidity, whatever other consequences may occur.

But in each case the Court has to decide the legislative intent. Banwarilal Agarwalla v.

State of Bihar, AIR 1961 SC 849: 1961 BLJR 589: 1962(1) SCR 33.

(viii) Rule of procedure are not by themselves an end but the means to achieve

the ends of justice. rules of procedure are tools forged to achieve justice and are not

hurdles to obstruct the pathway to justice. Construction of a rule of procedure which

promotes justice and prevents its miscarriage by enabling the Court to do justice in

myriad situations, all of which cannot be envisaged, acting within the limits of the

permissible construction, must be preferred to that which is rigid and negatives the

cause of justice. Thes reason is obvious. Procedure is meant to subserve and not rule the

cause of justice. When the outcome and fairness of the procedure adopted is not

doubted and the essentials of the prescribed procedure have been followed there is no

reason to discard the result simply because certain details which have not prejudicially

affected the result have been inadvertently omitted in a particular case. In our view, this

appears to be the pragmatic approach which needs to be adopted while construing a

R.1] GENERAL 13

purely procedural provision. Otherwise, rules of procedure will become the mistress

instead of remaining the handmaid of justice, contrary to the role attributed to it in our

legal system. Owner and Parties interested in M.V. “Vali Pero” v. Fernandeo Lopez,

AIR 1989 SC 2206: 1989(4) SCC 671: 1989 Supp. (1) SCR 187: 1989(4) JT 100.

21. Rules, Unilateral: Alteration of — Rules can be unilaterally altered by

Government without consent of the employee. Roshan Lal Tandon v. Union of India,

AIR 1967 SC 1889: 1968(1) SCR 185: 1967 SLR (SC) 832: 1968(1) LLJ 576.

22. Rules cannot be Altered or Amended by Administrative or Executive Instructions — The Government is not competent or alter the rules framed under

Article 309 by means of administrative instructions. State of Haryana v. Shamsher Jang

Bahadur, 1972 SLR 441: AIR 1972 SC 1546: 1973(1) SCR 249: 1972(2) SCC 188:

1973(2) SCJ 582: 1972 Lab IC 824: 1972(2) LLJ 186; State of Punjab v. Madan Singh,

AIR 1972 SC 1429: 1974(3) SCC 90: 1973(1) SCJ 82: 1972 SLR 446; D.K. Gupta v.

Municipal Corporation of Delhi, 1979(3) SLR 416: 1978 SLJ 525; Dr. (Miss) Subhash

Kaushal v. State of Punjab, 1982(1) SLJ 684. Retrospective operation of service rules

could not be given by mere Executive instructions. Where the Rules framed by the

Society are not statutory rules and they can be amended by a resolution of the

competent body and any legislation or framing of rules under Article 309 of the

Constitution is not required. I.C.A.R. v. Satish Kumar, 1998(4) SCC 219: AIR 1998 SC

1782: 1998(3) JT 9: 1998(2) SLR 808: 1998(3) SLJ 155: 1998 Lab IC 1596.

23. Rules cannot be Modified by Executive Orders — A rule framed under

the proviso to Article 309 of the Constitution cannot be modified by an executive

order. State of Maharashtra v. Chandra Kant Anant Kulkarni, 1981(2) SLJ 280:

1982(1) SLR 697 (SC). Executive instructions cannot prescribe departmental test. State

of Punjab v. Madan Singh, 1982(1) SCR 665: 1981(4) SCC 130: AIR 1981 SC 1990:

1981 Lab IC 1568: 1982(1) SLR 697: 1981(2) SLJ 280: 1981(2) LLJ 433: 1981(3) SLR

326: 1981 SCC (Lab) 562. Statutory rules cannot be overridden by executive orders or

executive practice. Merely because the Government had taken a decision to amend the

rules does not mean that the rule stood obliterated. Till the rule is amended, the rule

applies. K. Kuppusamy v. State of Tamil Nadu, 1998(8) SCC 469.

When the Rules provide different treatment to class I and class II service

respectively then without the amendment of the rules, the Class II of the service can not

be treated as Class I only by way of notification. Following such a course in effect

amounts to amending the rules by a Government Order and ignoring the mandate of

Article 309 of the Constitution. Rajinder Singh v. State of Punjab, AIR 2001 SC 1769:

2001(4) JT 538: 2001(5) SCC 482.

The provisions of statutory Rules cannot be taken away by a suggestion of the

executive until and unless the Rules are appropriately amended. N.K. Pankajaksha Nair

v. P.V. Jayaraj, 2001(3) SLR 580 (SC): 2001(4) JT 406: 2001(2) KLT 141.

The proviso to rule 2 of Fundamental Rules prohibits modification or

replacement of provisions of Fundamental Rules itself in exercise of power under

Article 309 of the Constitution to the disadvantage of the person already in service. It

has no reference to any other Rule which a Governor could frame under proviso to


Article 309 of the Constitution. In that view of the matter the proviso to Rule 2 of the

Fundamental Rules cannot affect the power of the Governor to amend the Pension Rules

in exercise of his power under the proviso to Article 309 of the Constitution.

Government of Andhra Pradesh v. Syed Yousuddin Ahmed, AIR 1997 SC 3439: 1997(7)

SCC 24: 1997(7) JT 395: 1997(5) SLR 219: 1998(1) SLJ 91: 1997 Lab IC 3361.

By an executive order the statutory rules cannot be whittled down nor can any

retrospective effect be given to such executive orders so as to destroy any right which

became crystallised. Uday Pratap Singh v. State of Bihar, 1994 Supp (3) SCC 451:

1994(6) JT 344: 1995(1) SCJ 304: 1994(5) SLR 608: 1995(1) SLJ 123: 1994(69) FLR

1148. Even rules framed under Article 309 of the Constitution cannot affect or impair

vested rights, unless it is specifically so provided in the concerned statutory rules. T.R.

Kapur & Ors. v. State of Haryana, AIR 1987 SC 415. It is obvious that an executive

direction stands even on a much weaker footing. Uday Pratap Singh v. State of Bihar,

1994 Supp (3) SCC 451: 1994(6) JT 344: 1995(1) SCJ 304: 1994(5) SLR 608: 1995(1)

SLJ 123: 1994(69) FLR 1148.

24. Relaxation of Rules — There can be no relaxation of the basic or

fundamental rules of recruitment. Suraj Parkash Gupta v. State of Jammu & Kashmir,

AIR 2000 SC 2386: 2000(7) SCC 561: 2000(5) JT 413: 2000 Lab IC 2588: 2000(4)

SLR 486.

25. Validity of Rule cannot be Affected by Reason of Inconsistency with

Prior Executive Order — The rule being statutory in origin, its validity cannot be

affected by reason of any inconsistency with the provisions of a prior executive order

issued by the Central Government. Wg. Commander J. Kumar v. Union of India, AIR

1982 SC 1064: 1982(2) SCC 116: 1982(3) SCR 453.: 1982(1) SLJ 452: 1982(1) SLR

715: 1982 Lab IC 1586.

25 (i) Gaps in Rules, Filling by Administrative or Executive Instructions —

(i) Government cannot amend or supersede statutory rules by administrative

instructions, but if the rules are silent on any particular point Government can fill up

the gaps and supplement the rules and issue instructions not inconsistent with the rules

already framed. Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910: 1968(1)

SCJ 672: 1968(1) SCR 111: 1968(2) LLJ 830; Lalit Mohan Deb v. Union of India,

1973(1) SCJ 92: AIR 1972 SC 995: 1972 SLR 411: 1972 Lab IC 543; State of Haryana

v. Shamsher Jang Bahadur, 1973(2) SCJ 582: AIR 1972 SC 1546: 1972(2) SCC 188:

1973(1) SCR 249; District Registrar, Palghat v. M.B. Koyyakutty, AIR 1979 SC 1060:

1979(3) SCR 242: 1979(2) SCC 150: 1979 SLJ 278: 1979(1) SLR 628: 1979 Lab IC

803; Union of India v. N.R. Sundram, 1982(2) SLR 393. The executive instructions may

supplement but not supplant the rules. Bishundeo Mahto v. State of Bihar, 1982 Lab IC

1446.

(ii) Breach of Executive or Administrative Instructions — A circular

containing instructions cannot be ignored where it filled up the gaps and supplemented

the statutory rules. Gurnam Singh v. State of Rajasthan, 1973(1) SCJ 267: 1971(2) SCC

452; Satya Dev Dogra v. Union of India, 1973 SLJ 32 (Delhi); D.P. Pathak v. State of

Punjab, 1980 SLJ 559: 1980(1) SLR 346.

R.1] GENERAL 15

26. Administrative or Executive Instruction: (i) Where no Rules — As long

as there is neither any legislative enactment nor any statutory rules framed by the

Governor or the President, the conditions of service or other matters relating to

employees can be regulated by the issuance of administrative instructions in exercise of

the executive power of the Government. Ram Jawaya Kapur v. State of Punjab, AIR

1955 SC 549: 1955(2) SCR 225: 1955 SCJ 504; B.N. Nagarajan v. State of Mysore,

1967(2) SCJ 664: AIR 1966 SC 1942: 1966(3) SCR 682: 1967(15) FLR 332;

Harikishan Singh v. State of Punjab, 1967 Cur LJ 833; Amin Chand Karwasra v. Lt.

Governor, H.P., 1971(2) SLR 906; Mallinath Jain v. Municipal Corporation, Delhi,

1973 SLJ 239: 1973(1) SLR 413; Dr. Amarjit Singh Ahluwalia v. State of Punjab, AIR

1975 SC 894: 1975 SLJ 220: 1975(1) SLR 171: 1975 Lab IC 613.

One set of administrative instructions can be modified by another set of

administrative instructions. D.K. Gupta v. Municipal Corporation of Delhi, 1979(3)

SLR 416: 1978 SLJ 525; Gurnam Singh v. State of Rajasthan, 1971(2) SLR 799:

1973(1) SCJ 267 SC.

(ii) Administrative/Executive Instructions cannot Modify Rule — An

administrative instruction cannot modify rule. One set of administrative instructions can

however be modified by another set of administrative instructions. Som Nath v. Union

of India, 1973(1) SLR 737: 1973 SLJ 619; Gurnam Singh v. State of Rajasthan, 1971(2)

SLR 799 (SC); Sant Ram Sharma v. State of Rajasthan, 1968(1) SCJ 672: 1968(1) SCR

111: AIR 1967 SC 1910; Ramesh Kumar Mishra v. State of M.P., 1979(3) SLR 232;

D.K. Gupta v. Municipal Corporation of Delhi, 1978 SLJ 525: 1979(3) SLR 416;

Kartar Singh v. State of Punjab, 1982(1) SLR 307.

Executive instructions requiring the date of birth of an employee should not be

corrected at least two years before superannuation cannot override the provisions of

Educational Rules (Kerala Education Rules, 1959, Chapter 14, Rule 18). Kunhikrishnan

v. State of Kerala, 1983(1) SLR 452, 453, 454, paras 5 and 6 Ker (FB).

(iii) Administrative/Executive Instructions or Directives, Inconsistent or

Contrary to Rule under Article 309 Invalid — If a circular or any part of it gives

administrative instructions contrary or opposed to any of the rules, the circular or that

part of the circular to that extent will be invalid. Gurnam Singh v. State of Rajasthan,

1973(1) SCJ 267: 1971(2) SLR 799: 1971(2) SCC 452; Prahlad Singh v. State of U.P.,

1976(2) SLR 752; S.L. Sachdev v. Union of India, 1980 Lab IC 1321: AIR 1981 SC

411: 1981(1) SCR 971: 1980(4) SCC 562: 1981(1) SLJ 115: 1980(4) SCC 562;

Bishandeo Mahto v. State of Bihar, 1972 Lab IC 1446.

(iv) Administrative Instructions/Orders do Confer Rights and Duties —

Even an administrative order confers rights and cannot be done away within an

unauthorised manner. Harnam Singh v. State of H.P., 1974(3) SLR 350; Union of India

v. K.P. Joseph, 1974(2) SCJ 276: 1973 SLJ 1: AIR 1973 SC 303: 1973(2) SCR 752:

1973(1) SCC 194 followed Premadhar Baruah v. State of Assam, AIR 1970 SC 1314:

1971(1) SCR 503: 1970(2) SCC 211: 1970 SLR 529: 1970 Lab IC 1067.

(v) Administrative Instructions, Publication of — It is highly desirable that

the decisions should be given due publicity and one such method is to publish them in


the Official Gazette but the publication in the Official Gazette is not the sine quo non of

the validity of action taken under them. Balbir Singh v. State of Punjab, 1975(1) SLR

241.

(vi) Administrative or Executive Instructions with Retrospective Effect — Government is not competent to issue any executive instructions with retrospective

effect. This is squarely within the legislative sphere. Dr. (Miss) Subhash Kaushal v.

State of Punjab, 1982(1) SLJ 684. By an executive order the statutory rules cannot be

whittled down nor can any retrospective effect be given to such executive orders so as

to destroy any right which became crystallised. Uday Pratap Singh v. State of Bihar,

1994 Supp (3) SCC 451: 1994(6) JT 344: 1995(1) SCJ 304: 1994(5) SLR 608: 1995(1)

SLJ 123: 1994(69) FLR 1148.

A condition of service determined by an executive order cannot be

subsequently altered retrospectively to the prejudice of a civil servant. Daljit Singh

Narula v. State of Haryana, 1979(1) SLR 420. Because the amended rules cannot take

away the vested right to be adjusted in a department upon appointment. Union of India

v. Parmanand, 1996(10) SCC 434: 1996(9) JT 544: 1996(5) SLR 313: 1996(74) FLR

2658.

Retrospective amendment of rules whereby the amount of pension payable

reduced from the amount payable at the time of retirement thus taking away the vested

right accorded to the employees. It was held that the amendment is invalid, arbitrary

and unconstitutional being violative of Articles 14 and 16 as also the article 19(1)(f) &

31(1) of the Constitution which were in force at that time. Chairman, Railway Board v.

C.R. Rangadhamaiah, AIR 1997 SC 3828: 1997(6) SCC 623: 1997(2) SCJ 523: 1997(4)

LLN 7: 1998(78) FLR 222: 1997(4) SLR 759: 1998(3) SLJ 76: 1998 Lab IC 100; See

also Bhakta Ramegowda v. State of Karnataka, AIR 1997 SC 1038: 1997(2) SCC 661:

1997(2) JT 325: 1997(1) LLJ 886: 1997(2) SLR 381: 1997(2) LLN 3: 1997(76) FLR

191: 1997 Lab IC 1290: 1998(1) SLJ 208.

27. Administrative Instructions and Rules and Regulations, Distinction Between — Broadly stated, the distinction between rules and regulations on the one

hand and administrative instructions on the other is, that rules and regulations can be

made only after reciting the source of power whereas administrative instructions are not

issued after reciting the source of power. Secondly, the executive power of a State is

not authorised to frame rules under Article 162. The rules under Article 309 on the

other hand constitute not only the constitutional rights of relationship between the State

and the Government servants but also establish that there must be specific power to

frame rules and regulations. Sukhdeo Singh v. Bhagatram Sardar Singh, AIR 1975 SC

1331: 1975(3) SCR 619: 1975(1) SCC 421: 1975(45) Comp Cas 285: 1975 Lab IC 881:

1975(1) SLR 605; see also Som Nath v. Union of India, 1973(1) SCR 737: 1973 SLJ

619. The statutory rules cannot be described as, or equated with, administrative

directions. State of Uttar Pradesh v. Babu Ram Upadhya, 1961 AIR SC 751: 1961(1)

CrLJ 773: 1961(2) SCR 679; But Government has the power to issue Administration

Order governing the service conditions of its employees in the absence of any statutory

provisions governing the field. M.M. Dolichan v. State of Kerala, AIR 2001 SC 216:

2001(1) SCC 151: 2001 Lab IC 66: 2001 SCC (L&S) 174: 2000(7) SLR 217.

R.1] GENERAL 17

28. Supplemental Instructions not to be Inconsistent with Rules — The

supplemental instructions can only be issued by the Government which is competent to

make the rules provided they are not inconsistent with the rules. Sant Ram Sharma v.

State of Rajasthan, AIR 1967 SC 1910: 1968(1) SCR 111: 1967 SLR 906; Ram Rattan

Bakhshi v. State of Punjab, AIR 1968 Punjab 436: 1968 Cur LJ 23; District Registrar,

Palghat v. M.B. Kayyakutty, AIR 1979 SC 1960: 1969 SLJ 278: 1979(1) SLR 628:

1979(4) SCC 248: 1979(119) ITR 996.

29. Letter/Memorandum Whether has Status of Rule — The form of the

letter/memorandum and its publication have to be borne in mind before the orders

contained therein can be held to be amounting to rules. Sita Ram v. Speaker, Haryana

Vidhan Sabha, 1972 SLR 756; I.N. Saxena v. State of M.P., AIR 1967 SC 1264:

1967(2) SCR 496: 1967 SLR 204: 1967(1) SCWR 665: 1967(2) LLJ 427.

A letter of the Government of India has no statutory force and cannot be the

basis for determining seniority. Vijaydevaraj Urs. v. G.V. Rao, 1983(1) SLR 292 (Kar)

(paras 28 to 30).

30. Instructions by Governor, do not become Service Rules — Memorandum

by Deputy Secretary conveying certain orders of the Governor to the Head of

Department and the latter had been asked to take necessary action in the matter. The

contents of memorandum could not become service rules. Jit Singh v. Secretary to

Government, 1968 Cur LJ 331.

31. Presidential Resolution, Power of Government to Override — Government has no authority to override the Presidential Resolution by any subsequent

decision which lacks legal authority. S.N. Karkhanis v. Union of India, 1974 SLJ 372:

1974(1) SLR 740: AIR 1974 SC 2302: 1974(3) SCR 589: 1974(4) SCC 360: 1974 SLJ

372.

32. Rules in Force Immediately before Commencement of Constitution — Rules framed by the Governor General in exercise of his powers under Section 241 of

the Government of India Act, 1935, have been preserved under Article 313 of the

Constitution and will continue so long as those rules were consistent with the

provisions of the Constitution and were not superseded by other rules made under

Article 309 of the Constitution. Union of India v. Shanti Swaroop, 1969 SLR 210.

A departmental instruction which never acquired statutory force under the

Government of India Act, 1919 does not become a statutory rule under Article 313 of

the Constitution. Accountant General v. S. Doraiswamy, 1980(3) SLR 538 (SC): AIR

1981 SC 783: 1981(4) SCC 93: 1981 Lab IC 184: 1981(2) SCR 155.

33. Rules and Regulations by Public Undertakings and Statutory Bodies — Staff or service rules and regulations by Public Undertaking which are statutory

corporations and statutory bodies have the legal force and the provisions are mandatory.

Chitaranjan Roy v. Damodar Valley Corporation, 1973(1) SLR 538; Sukhdev Singh v.

Bhagatram Sardar Singh, AIR 1975 SC 1331: 1975(3) SCR 619: 1975(1) SCC 421:

1975(1) SLR 605: 1975(45) Comp Cas 285.


34. Repeal of rules — The effect of a rule being substituted by a new rule

clearly is that the old rule, which stands substituted, can under no circumstances have

any application at least from the date when it ceased to exist. Union of India v. C. Rama

Swamy, AIR 1997 SC 2055: 1997(4) SCC 647: 1997(4) JT 605: 1997(2) SLR 584:

1997(2) LLN 619. Government orders which are legislative in character can be repealed

by the subsequent rules and Tribunal can not direct to enforce the repealed orders. State

of Andhra Pradesh v. Civil Suppliers Services Association, 2000(9) SCC 299: 2000(9)

JT 602: 2000(4) LLN 27.

35. Strict compliance of Rules is required — The recruitment rules made

under Article 309 of the constitution have to be followed strictly and not in breach. If a

disregard of the rules and the by-passing of the Public Service Commission is

permitted, it will open a back door for illegal recruitment without limit. Anuradha Bodi

v. Municipal Corporation of Delhi, 1998(5) SCC 293: AIR 1998 SC 2093: 1998(3) JT

757: 1998(4) SLR 359: 1999(1) SLJ 1: 1999(1) LLJ 560: 1998 Lab IC 1911.

R.2

2. Interpretation - In these rules, unless the context otherwise

requires,

(a) “Appointing Authority” in relation to a Government servant,

means—

(i) the authority empowered to make appointments to the

Service of which the Government servant is for the time

being a member or to the grade of the Service in which the

Government servant is for the time being included, or

(ii) the authority empowered to make appointments to the post

which the Government servant for the time being holds, or

(iii) the authority which appointed the Government servant to

such Service, grade or post, as the case may be, or

(iv) where the Government servant having been a permanent

member of any other service or having substantively held

any other permanent post, has been in continuous

employment of the Government, the authority which

appointed him to that service or to any grade in that

service or to that post, whichever Authority is the highest

authority;

(b) “Cadre Authority” in relation to a service, has the same

meaning as in the rules regulating that service;

R.2] GENERAL 19

(c) “Central Civil Service and Central Civil Post”, includes a

civilian service or civilian post, as the case may be, of the corresponding

class in the Defence Services;

(d) “Commission” means the Union Public Service Commission;

(e) “Defence Services” means service under the Government of

India in the Ministry of Defence, paid out of the Defence Services

Estimates, and not subject to the Army Act, 1950 (46 of 1950), the Navy

Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950);

(f) “Department of the Government of India” means any

establishment or organisation declared by the President by a notification

in the Official Gazette to be a department of the Government of India;

(g) “Disciplinary Authority” means the authority competent under

these rules to impose on a Government servant any of the penalties

specified in Rule 11;

(h) “Government Servant” means a person who—

(i) is a member of a Service or holds a civil post under the

Union, and includes any such person or foreign service or

whose services are temporarily placed at the disposal of a

State Government, or a local or other authority;

(ii) is a member of a Service or holds a civil post under a State

Government and whose services are temporarily placed at

the disposal of the Central Government;

(iii) is in the service of a local or other authority and whose

services are temporarily placed at the disposal of the

Central Government;

(i) “Head of the department”, for the purpose of exercising the

powers as appointing, disciplinary, appellate or reviewing authority,

means the authority declared to be the head of the department under the

Fundamental and Supplementary Rules or the Civil Service Regulations,

as the case may be;

(j) “Head of the office” for the purpose of exercising the powers as

appointing, disciplinary, appellate or reviewing authority, means the

authority declared to be the head of the office under the General

Financial Rules;


(k) “Schedule” means the Schedule to these rules;

(I) “Secretary” means the Secretary to the Government of India in

any Ministry or Department, and includes—

(i) a Special Secretary or an Additional Secretary,

(ii) a Joint Secretary placed in independent charge of a

Ministry or Department,

(iii) in relation to the Cabinet Secretariat, the Secretary to the

Cabinet,

(iv) in relation to the President”s Secretariat, the Secretary to

the President, or, as the case may be, the Military

Secretary to the President,

(v) in relation to the Prime Minister”s Secretariat, the

Secretary to the Prime Minister, and

(vi) in relation to the Planning Commission, the Secretary or

the Additional Secretary to the Planning Commission;

(m) “Service” means a civil service of the Union.

COMMENTARY

S Y N O P S I S

Clause (a) “Appointing Authority”

1. Appointing authority — powers of .. ................................................................................ 22

2. Appointing authority to act with application of mind ....................................................... 23

3. Appointing authority — Power to take disciplinary action ............................................. 24

4. Appointing authority — Power to initiate disciplinary action ......................................... 24

5. Appointing authority cannot delegate its powers of dismissal or removal ....................... 24

6. Appointing authority of District Judges and persons of Judicial Service of the State ...... 25

7. Appointing authority when becomes defunct ................................................................... 25

8. Appointment by authority having no power to appoint .................................................... 25

Clause (c) “Civil Post”:

9. “Civil Post” - meaning of ................................................................................................ 25

10. Whether holder of civil post, tests to be applied............................................................... 26

11. Civil post includes all personnel employed in civil affairs ............................................... 26

12. “Announcer” in All India Radio ....................................................................................... 27

R.2] GENERAL 21

13. Chairman of Improvement Trust ...................................................................................... 27

14. Contingent paid employees ............................................................................................. 27

15. Contractor of Railway tea and refreshment stalls ............................................................. 27

16. Copyists and typists in Court of Bihar ............................................................................. 27

17. C.R.P.F. ............................................................................................................................ 27

18. Defadars and chokidars appointed under village Chowkidari Act.................................... 27

19. Employees of Canteen Services Department (India) ........................................................ 27

20. Employees of college registered under Societies Registration Act .................................. 27

21. Employees of Co-operative Society or Bank.................................................................... 27

22. Employees of Council of Scientific and Industrial Research ........................................... 27

23. Employees of Electricity Board ....................................................................................... 28

24. Employees of Hindustan Steel Ltd. .................................................................................. 28

25. Employees of Indian Institute of Technology, Delhi ........................................................ 28

26. Employees of Indian Oil Corporation .............................................................................. 28

27. Employees of Indian Standards Institution ....................................................................... 28

28. Employees of Life Insurance Corporation, Industrial Finance Corporation and Oil &

Natural Gas Commission ................................................................................................. 28

29. Employees of Local Authorities ....................................................................................... 28

30. Employees of Reserve Bank of India ............................................................................... 29

31. Employees of Road Transport Corporation ...................................................................... 29

32. Employees of Sainik Schools Society .............................................................................. 29

33. Employees of State Bank of India .................................................................................... 29

34. Employees of Statutory Corporations............................................................................... 29

35. Extra departmental branch Post Master or Sub-Post Master ............................................ 29

36. Extra departmental delivery agent .................................................................................... 30

37. General Manager, Court of Wards ................................................................................... 30

38. Homeguard ....................................................................................................................... 30

39. Honorary Officers ............................................................................................................ 30

40. Insurance Medical Practitioner ......................................................................................... 30

41. Mali in Bihar Raj Bhawan ................................................................................................ 30

42. Mauzadar in Assam valley ............................................................................................... 30

43. Notary ............................................................................................................................. 30

44. Panel lawyer ..................................................................................................................... 31

45. Public Prosecutor ............................................................................................................. 31

46. Part-time employees ......................................................................................................... 31

47. Secretary under Bombay Village Panchayat Act .............................................................. 31

48. Secretary under Karnataka Village and Local Boards Act, 1959 ..................................... 31

49. Staff Artist of All Indian Radio ........................................................................................ 31


50. Tehsildar .......................................................................................................................... 31

51. Teacher in Panchayat service ........................................................................................... 31

52. Trainees ............................................................................................................................ 32

53. Village Munsif ................................................................................................................. 32

54. Work Charged Establishment, Chowkidar ....................................................................... 32

55. Dhobis in Military Academy……………………………………………………… ......... 32

56. Members of Company Law Board ................................................................................... 32

57. Kurk Amins appointed on commission basis ................................................................... 32

58. Employees of statutory canteen ........................................................................................ 32

59. Judge of High Court ......................................................................................................... 32

Clause (d)

See also Allied Service Matters - Public Service Commission

Clause (g)

60. Delegation of powers ....................................................................................................... 33

Clause (h)

61. Government or Municipal servant .................................................................................... 34

Clause (m)

62. Member of a service ......................................................................................................... 34

63. Civilian post in defence service ................................................................................. 34

Clause (a).

1. Appointing Authority: Powers of — (i) It is a fundamental principle of

interpretation that unless a contrary intention appears from the contract, a power to

appoint should include a power to terminate the appointment, including termination of

the person appointed by his compulsory retirement in accordance with the terms and

conditions of his service. The fundamental principle underlies Section 16 of the General

Clauses Act. S.R. Tiwari v. District Board, Agra, 1964(3) SCR 55: AIR 1964 SC 1680:

1964(2) SCJ 300: 1966(13) FLR 104; State of Tamil Nadu v. M.N. Sundarajan, 1980 (3)

SLR 451: 1981(1) SLJ 36; As regards competant authority to issue chargesheet, see

Government of Tamil Nadu v. S. Vel Raj, AIR 1997 SC 1900: 1997(2) SCC 708:

1997(1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3) LLJ 1

and Inspector General of Police v. Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC

145: 1996(6) JT 450: 1996 SCC (L&S) 433: 1996(32) ATC 663: 1996(2) SLR 470:

1996(1) UJ 424: 1996(74) FLR 2510: 1996(2) LLN 515: 1997(2) LLJ 191.

R.2] GENERAL 23

See also Karnataka State Road Transport v. K.C. Mudalgirappa, 1988(1) SLR

106 Kar.

(ii) The power of appointment carries with it the power to dismiss, discharge,

remove an employee or to terminate his services in accordance with the conditions of

employment. Post Graduate Institute of Medical Education v. Sham Lal, 1974 SLJ 365:

1974 (2) SLR 814; Union of India v. Gurbaksh Singh, AIR 1975 SC 641: 1975(3) SCR

444: 1975(3) SCC 638: 1975 SLJ 554: 1975(1) SCJ 351.

(iii) Power of delegatee is circumscribed by the instructions of delegation and

can be validly exercised only within the ambit of the delegation. Delegation made by

the General Manager Railways extends only to the power to appoint, and not the power

to take disciplinary action. Gafoor Mia Kansal v. Director, DMRL, 1988(4) SLR 445

(CAT Hyderabad).

(iv) A delegatee of the appointing authority cannot initiate disciplinary

proceedings, only by virtue of the fact that he has been delegated with the power to

appoint unless he is also designated as a disciplinary authority. Such authority cannot

impose major punishment if it is lower in rank than the authority which appointed the

particular Railway servant or Government servant. Gafoor Mia Kansal v. Director,

DMRL, 1988(4) SLR 445 (CAT Hyderabad).

(v) The power of “appointment” conferred by Article 229(1) includes the power

to suspend, dismiss, remove or compulsory retirement from service. Chief Justice of

A.P. v. I.V.A. Dixitulu, 1979(1) SLR 1: 1979 SLJ 332: AIR 1979 SC 193: 1979(2) SCC

34: 1978 Lab IC 1672.

(vi) Where the authorities which had appointed a civil servant to service or to

the grade or to a particular post are different for the purpose of the rule and therefore,

for Article 311 of the Constitution, the appointing authority would be the highest of the

three authorities. K.K. Mittal v. Union of India, 1974(2) SLR 602; Dharma Dev Mehta

v. Union of India, AIR 1980 SC 557: 1980(2) SCR 554: 1980(2) SCC 205: 1980 Lab IC

383: 1980(1) SLR 414.

See also State Bank of India, Hyderabad v. Ch. Hanumantha Rao, 1988(4) SLR

703 (AP)

(vii) The competent authority to suspend an officer is appointing authority or

any subordinate authority on whom the power of disciplinary authority has been

conferred by the Governor by general or special order. Held that suspension order by

such delegate is valid. A.K. Jadhav v. State of Madhya Pradesh, 1997(9) SCC 240: AIR

1997 SC 2394: 1997(4) JT 583: 1997(2) SLR 804: 1997(76) FLR 266: 1997(2) SCJ

125: 1997 Lab IC 2339.

2. Appointing authority to act with application of mind — As per the

relevant rules, competent authority to impose penalty of dismissal was Chairman-cum-

Managing Director but he had mechanically approved the proposal of the Director

(Commercial) who had also not examined the matter before making his proposal. Held

that whenever an Authority decides a matter, which entails civil consequences to the

person concerned, it must pass speaking order giving reasons. Held further that the


Chairman-cum-Managing Director who is the Competent Authority to impose the

penalty of dismissal upon the petitioner has not passed the impugned order of dismissal

after applying his mind to the inquiry report, representation of the petitioner against the

inquiry report and other facts and circumstances on record. He had mechanically

approved the proposal of the Director (Commercial), who had also not examined the

matter before making his proposal. In fact, the matter has been dealt with as routine

administrative matter, whereas, it was a quasi-judicial matter involving service career

of the petitioner and the Competent Authority was required to pass speaking order by

giving reasons for imposing the penalty after considering the inquiry report,

representation of the petitioner and other material concerning disciplinary proceedings

on record. Ashok Paper Mills Kamgar Union v. Union of India, 2000(10) SCC 28:

2000(2) LLJ 659: 2000(4) LLN 18: 2000(87) FLR 437.

3. Appointing authority — Power to take disciplinary action — Article 311

gives protection to a member of a civil service of the Union or an all-India service or a

civil service of a State or to a person holding a civil post under the Union or a State

against dismissal or removal by an authority subordinate to that by which he was

appointed. Article 311 does not provide that a member of a civil service or a person

holding a civil post either under the Union or a State cannot be dismissed or removed

by an authority except the appointing authority. Held that there is no requirement that

the authority which takes disciplinary action must continue to have the power of

making appointment to the civil service or on a civil post under the Union or a State. It

can be any other authority so long as it is not subordinate in rank or grade to the

authority by which the delinquent Government servant was appointed. That is the only

requirement of Article 311 and nothing more can be read into it. Jai Jai Ram v. Uttar

Pradesh State Road Transport Corporation, AIR 1996 SC 2289: 1996(4) SCC 727:

1996(6) JT 463: 1996 SCC(L&S) 1071: 1996 Lab IC 2034: 1996(2) UJ 540: 1996(2)

LLJ 729: 1996(3) SLJ 15: 1996(5) SLR 141: 1996(74) FLR 2016: 1996(2) LLN 465.

4. Appointing authority — Power to initiate disciplinary proceedings — It

is not necessary that the authority competent to impose the penalty must initiate the

disciplinary proceedings and that the proceedings can be initiated by any superior

authority who can be held to be the controlling authority who may be an officer

subordinate to the appointing authority. Steel Authority of India v. R.K. Diwakar, AIR

1998 SC 2210: 1997(11) SCC 17: 1997(7) JT 404: 1997(3) CLT 379(SC): 1997(77)

FLR 351: 1997(5) SLR 234: 1998(1) LLJ 344: 1998(1) SLJ 57: 1998 Lab IC 2122; See

also Ram Kishan v. Union of India, AIR 1996 SC 255: 1995(6) SCC 157: 1995(7) JT

43: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71) FLR 929; Registrar

of Co-operative Societies v. F.X. Fernando, 1994(1) SCR 959: 1994(1) JT 666: 1994(2)

SCC 746: 1994(27) ATC 188: 1994(1) SLJ 124: 1994(1) SLR 820: 1994(68) FLR 769:

1994(1) LLN 847: 1994(1) LLJ 819; Additional Supdt. of Police v. T. Natarajan,

1998(9) JT 257: 1999(3) LLJ 1482: 2000(85) FLR 39.

5. Appointing Authority cannot Delegate its Powers of Dismissal or Removal — Article 311(1) of Constitution provides that the holder of a civil post shall

not be dismissed or removed by an authority subordinate to that by which he was

appointed. It is implicit that the appointing authority has to personally apply its mind to

the question and he cannot delegate such a function. Management of Delhi Transport

R.2] GENERAL 25

Undertaking v. B.B.L. Hajelay, AIR 1972 SC 2452: 1973(2) SCR 114: 1972(2) SCC

744: 1972 SLR 787: 1973 SCJ 19. Where however the President or the Governor is the

appointing authority, the decision of Minister or Officer under the rules of business is

the decision of the President or the Governor. Where functions entrusted to a Minister

are performed by an official employed in the minister”s department there is in law no

delegation because constitutionally the act or decision of the official is that of the

Minister. The official is merely the machinery for the discharge of the functions

entrusted to a Minister. Shamsher Singh v. State of Punjab, 1975(1) SCR 814: AIR

1974 SC 2192: 1974(2) SCC 831: 1974(2) SLR 701: 1974 Lab IC 1380.

6. Appointing Authority of District Judges and Persons of Judicial Service

of the State — The Governor is the appointing authority. Appointment or dismissal or

removal of persons belonging to the judicial service of the State is not personal function

of the Governor but is an executive functions exercised in accordance with the rules in

that behalf under the Constitution. The decision of Minister or Officer under the rules

of business, is the decision of the President or the Governor. Shamsher Singh v. State of

Punjab, 1975(1) SCR 814: AIR 1974 SC 2192: 1974(2) SCC 831: 1974(2) SLR 701:

1974 Lab IC 1380: M.M. Gupta v. State of J&K, AIR 1982 SC 1579: 1983(1) SCR 593:

1982(3) SCC 412: 1983(1) SLR 160: 1982 Lab IC 1970: 1983(1) SLJ 82. Also see rules

8 & 9, Note 9.

7. Appointing Authority when Becomes Defunct — Where an appointing

authority has ceased to exist and its corresponding authority has been declared by

competent authority then the defunct authority”s status must be determined by the

corresponding authority thus created. Harbans Lal v. Union of India, 1970 SLR 173.

8. Appointment by Authority having no power to Appoint — If a person is

found to have been appointed by an authority who had no power or jurisdiction to make

such an appointment and on whom the Government has not delegated any such power

of appointment, the person so appointed cannot be said to have held a post under the

State which might attract the provisions of Article 311. Narayan Das v. Deputy

Commissioner of Darrang, Tezpur, AIR 1972 Assam 57. see also H. Lyngdoh v.

Cromlyn Lyngdoh, AIR 1971 SC 1110: 1971(3) SCR 903: 1971(2) SLR 330: 1971(1)

SCC 754, where the appointment was made without sanction and the services were also

terminated without sanction.

See also K.M.Agrahare v. Chief Secy. Delhi Admn., 1989(3) SLR 357 (CAT,

New Delhi).

Where the appointment was made by the Commandant General even though the

rule conferred power on the Provincial Government to make such appointments, held,

the Commandant General had the power to dismiss the appointee. The dismissal order

would not be void on the ground that it is made by an authority lower than the

appointing authority. Rama Nand Singh v. State of Bihar, 1982(1) SLR 693 (SC).

Clause (c).

9. “Civil Post” - Meaning of — In Article 311 a civil post means a post not

connected with defence outside the regular civil service. A post is a service or

employment. A person holding a post under a State is a person serving or employed


under the State. There is a relationship of master and servant between the State and a

person said to be holding a post under it. The existence of this relationship is indicated

by the State”s right to select and appoint the holder of the post, its right to suspend and

dismiss him, its right to control the manner and method of his doing the work and the

payment by it of his wages or remuneration. A relationship of master and servant may

be established by the presence of all or some of these indicia in conjunction with other

circumstances, and it is a question of fact in each case whether there is such a relation

between the State and the alleged holder of a post. In the context of Articles 309, 310

and 311, a post denotes an office. A person who holds a civil post under a State holds

“office”, during the pleasure of the Governor of the State, except as expressly provided

by the Constitution. A post under the State means a post under the administrative

control of the State. The State may create or abolish the post and may regulate the

conditions of service of persons appointed to the post. State of Assam v. Kanak

Chandra Dutt, 1967(2) SCR 7: 1967(63) ITR 656: 1967(2) SCJ 461: 1967(1) SCWR

228: AIR 1967 SC 884, see also Bihar State Typists” & Copyists” Union v. State of

Bihar, 1973(1) SLR 749: 1973 SLJ 512; Union of India v. M.A. Chaudhory, 1975(1)

SLR 300: 1975 Lab IC 423; Superintendent of Post Offices v. P.K. Rajamma, 1977(3)

SCR 678: AIR 1977 SC 1677: 1977(3) SCC 94: 1977 SLJ 532: 1977 SLR 226: 1977(2)

SCJ 321.

It is now settled law that the expression “civil post under the Union or a State”

in Article 311 means an appointment or office on the civil side of the administration as

distinguished from a post under the Defence Services and that the Article excludes only

the members of Defence Services and persons holding any post connected with defence.

Ganga Prasad Gurung v. Vijay Kumar, 1982 Lab IC 1884; State of Assam v. K.C.

Datta, 1967(2) SCR 7: 1967(63) ITR 656: 1967(2) SCJ 461: 1967(1) SCWR 228: AIR

1967 SC 884.

10. Whether Holder of Civil Post, Tests to be Applied — Lord Thankerton in

the case of Short v. J&W Henderson Ltd., reported in (1946) 174 LT 417, has laid down

four tests to determine whether a person is holder of a civil post:— (a) the master”s

power of selection of his servant, (b) the payment of wages or other remuneration, (c)

the master”s right to control the method of doing the work, and (d) the master”s right of

suspension, or dismissal. Dr. Nanigopal Ghose v. State of West Bengal, AIR 1970 Cal

1. The Central Civil Services (CCA) Rules, 1965 are not applicable to civilians drawing

salary from Ministry of Defence. Union of India v. V.K.S. Subramanian, 1989(10) ATC

513 (SC).

11. Civil Post Includes All Personnel Employed in Civil Affairs — Civil

post includes all, its personnel, whether permanent or temporary or officiating

employed in civil affairs of the Union or a State. Mohini Mohan Chakravarty v. State of

Tripura, AIR 1959 Tripura 2. A casual labourer is not the holder of a civil post. State of

Assam v. Kanak Chandra Dutt, 1967(2) SCR 7: 1967(63) ITR 656: 1967(2) SCJ 461:

1967(1) SCWR 228: AIR 1967 SC 884; Ganga Prasad Gurung v. Vijay Kumar, 1982

Lab IC 1884. See also Ranjit Kumar Manjumdar v. Union of India, 1995 SCR Supp(5)

717: 1996(1) SCC 51: 1996(1) SLR 35 (SC).

R.2] GENERAL 27

12. “Announcer” in All India Radio — “Announcer” in the All India Ratio

holds a civil post and is entitled to the protection of Article 311(2) of the Constitution.

Ilyas Ahmad v. Station Director, All India Radio, Hyderabad, 1979 SLJ 592: 1979(2)

SLR 651 (AP).

13. Chairman of Improvement Trust — Holds a civil post under the State

Government. Durga Prasad Tripathy v. State of Orissa, 1982(1) SLJ 1.

14. Contingent paid employees — Contingent paid persons do not hold civil

post. Mahendra Lal Chakrabarti v. Union Territory, AIR 1959 Tripura 21.

15. Contractor of Railway Tea and Refreshment Stalls — Contractor of

Railway tea and refreshment stalls is not a Railway servant and is not entitled to claim

protection under Article 311. Nanik Awatrai Chainani v. Union of India, 1971(2) SCJ

636: 1970(2) SCR 321: 1970 SLR 858.

16. Copyists and Typists in Courts of Bihar — Copyists and typists of the

revenue, civil and criminal courts, including the High Court, in the State of Bihar are

not Government Servants. They do not hold civil posts and the provision of Article 311

are not applicable to them. Bihar State Typists” & Copyist” Union v. State of Bihar,

1973 SLJ 512: 1973(1) SLR 749.

17. C.R.P.F. — The armed Force is a civil service and posts in it are civil

posts. U.B.S. Teotia v. Union of India, 1980(1) SLR 698; Ranjit Kumar Manjumdar v.

Union of India, 1996 SCR Supp(5) 717: 1996(1) SCC 51: 1996(1) SLR 35 (SC).

18. Dafadars of Chowkidars Appointed under Village Chowkidari Act — Defadars or chowkidars appointed under Village Chowkidari Act (Bengal Act VI of

1870) hold a civil post under the State within the meaning of Article 311 of the

Constitution. Rajpati Dubey v. State of Bihar, 1973 SLJ 770.

19. Employees of C.S.D.(I) — Employees working in the establishment of

Canteen Services Department (India) are civil servants. Vigyan Bhushan Aggarwal v.

Union of India, 1977 SLJ 645: 1978(1) SLR 84.

20. Employees of College Registered under Societies Registration Act —

Such employees do not hold civil post. Anand Krishna Purohit v. Board of Governors,

Regional Engineering College, Kurukshetra, 1972 SLR 597: 1972 Cur LJ 525.

21. Employees of Co-operative Society or Bank — Employees of Co-

operative society or Provincial Co-operative Bank do not hold civil post under the

State. Ram Nath Sharma v. State of M.P., AIR 1959 MP 218; Chaturbhuj Sahai v.

Chairman, Board of Directors, AIR 1935 Pat 223; Dharampal Soni v. State of Punjab,

1973(2) SLR 845; Krishna Lal Pahwa v. State of Haryana, 1974 SLJ 229.

22. Employees of Council of Scientific and Industrial Research — The

council is a registered society and is not a public body, nor it is a Government. Its

employees do not hold civil post. Director General of Health Services v. Bikash

Chatterjee, AIR 1969 Cal 525: 1970 SLR 355. The Council is not an authority within

the meaning of Article 12 of the Constitution. Sabhajit Tewari v. Union of India, AIR


1975 SC 1329: 1975(3) SCR 616: 1975(1) SCC 485: 1975 SLJ 410: 1975(1) SLR 422:

1975 Lab IC 819.

23. Employees of Electricity Board — Employees of State Electricity Board

are neither member of the Civil Service of the Union or a State or hold a civil post

under the Union or a State and are not protected under Article 311. Jai Dayal v. State of

Punjab, AIR 1965 Punjab 316; Electricity Board, Rajasthan v. Mohan Lal, AIR 1967

SC 1857: 1967(3) SCR 377: 1967 SLR 373: 1970(21) FLR 59: 1968(1) LLJ 257, Punjab

State Electricity Board is not a “State” and its employees do not enjoy any statutory

status. Nirvir Singh v. Punjab Electricity Board, 1973(1) SLR 277: AIR 1973 Punjab

322; Raj Kumar Kulshreshtra v. Secretary, Rajasthan State Electricity Board, 1979(2)

SLR 733.

24. Employees of Hindustan Steel Ltd. — Hindustan Steel Ltd. is not a

department of the Government and its servants are not holders of civil posts. Dr. S.L.

Agarwal v. General Manager, Hindustan Steel Ltd., AIR 1970 SC 1150: 1970(3) SCR

363: 1970(1) SCC 177: 1970(1) SCWR 188: 1970(2) SCJ 605: 1970 SLR 351.

25. Employees of Indian Institute of Technology of Delhi — The

appointment of each employee by respondent is contractual. There is an ordinary

relationship of master and servant between them and nothing more. V. Ramamurthy v.

Indian Institute of Technology, 1973(1) SLR 701: 1973 SLJ 62 (Delhi).

26. Employees of Indian Oil Corporation — The employees of Indian Oil

Corporation Ltd. are not civil servants and cannot claim benefit of the Constitutional

protection granted under Article 311 or the rules framed under the proviso to Article

309. D.M. Nagaraja Rao v. Indian Oil Corporation Ltd., 1970 SLR 475.

27. Employees of Indian Standards Institution — Employees of Indian

Standards Institution do not hold civil post under the Union and are not entitled to

protection under Article 311. B.L. Bhatia v. Indian Standards Institution, 1973(2) SLR

694: 1974 SLJ 51.

28. Employees of Life Insurance Corporation of India, Industrial Finance Corporation and Oil and Natural Gas Commission — They are statutory status and

are entitled to seek declaration of being in employment when their dismissal or removal

is in contravention of statutory provisions. These employees are not servants of the

Union or the State. Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331: 1975(3) SCR 619:

1975(1) SCC 421: 1975(1) SLR 605: 1975 Lab IC 881: 1975(47) FJR 214: 1975(45)

Comp Cas 285.

29. Employees of Local Authorities — Employees of District Boards,

Municipalities, Town Improvement Trust, Executive Officers of Panchayat or

Municipalities, do not hold civil post and are not entitled to protection under Article

311. Hanuman Thappa R v. Special Officer, District Board, AIR 1960 AP 341; M.

Yugandhra Rao v. Government of A.P., AIR 1959 AP 506; S.R. Tewari v. District

Board, Agra, AIR 1964 SC 1680: 1964(3) SCR 55: 1964(2) SCJ 300: 1966(13) FLR

104: 1964(1) LLJ 1; Anup Singh v. State of Haryana, 1969 SLR 850; Ram Piari v.

Municipal Committee, AIR 1956 Punjab 220; Pramod Ranjan Dass v. Cuttack

R.2] GENERAL 29

Municipality, 1973 SLJ 490; M. Srinivasan v. President of District Board, AIR 1968

Mad 211.

30. Employees of Reserve Bank of India — Employees of the Reserve Bank

of India do not hold a civil post under the Union Government and therefore provisions

of Article 311(2) have no application to them. T.S. Varghese v. Reserve Bank of India,

1980(1) SLR 857.

31. Employees of Road Transport Corporation — Employees of State Road

Transport Corporation do not hold civil post and are not protected under Article 311.

General Manager, Pepsu Road Transport Corporation v. S. Gurdip Singh, 1964(66)

PLR 1040; Mafatlal Narain Dass Barot v. Rathod, 1967(1) SCWR 30: AIR 1966 SC

1364: 1966(3) SCR 40: 1967(1) SCJ 64.

32. Employees of Sainik Schools Society — Sainik Schools Society is a

Society registered under Societies Registration Act, 1860. Employees of, do not hold a

civil post. K.C. Thomas v. R.L. Gadeock, AIR 1970 Pat 164.

33. Employees of State Bank of India — (i) Employees of State Bank of India

do not hold post under the Union or a State. They are employees of a company

incorporated under the State Bank of India Act, 1955. Article 311 does not apply to

them. Suprasad Mukherjee v. State Bank of India, AIR 1960 Cal 72; Baleshwar Prasad

v. Agent, State Bank of India, AIR 1959 Pat 418.

(ii) Whether writ could issue against State Bank of India, whether its employee

could obtain declaration that termination of his service was a nullity and he continued

in service? See V. Ramiah v. State Bank of India, AIR 1964 Mad 335; Ramesh Krishna

Rao v. State Bank of India, 1974(2) SLR 622.

34. Employees of Statutory Corporations — Employees of statutory

corporations generally do not hold civil post. Statute under which the company or

corporation was created requires examination to hold the post unless it is a civil post

under the State. Abani Bhushan v. Hindustan Cables Ltd., AIR 1968 Cal 124; Ranjeet

Kumar Chatterjee v. Union of India, AIR 1969 Cal 95. In Sukhdev Singh v. Bhagatram,


SLR 605: 1975(45) Comp Cas 285, the Supreme Court has held that Oil and Natural

Gas Commission, Life Insurance Corporation and the Industrial Finance Corporation

are statutory bodies and authorities within the meaning of Article 12 of Constitution.

The employees of these bodies have a statutory status but they are not servants of the

Union or State. Also see Amar Nath Bhatia v. Trade Fair Authority of India, 1982(2)

SLR 670: 1982(2) SLJ 204.

Employees of statutory corporations though must be entitled to the protection

of Article 311 of the Constitution are entitled to the protection of Article 14 to 16 of the

Constitution. V. Rajagopal Reddy v. A.P.S.E.B. Hyderabad, 1984(1) 1 Andh LT 442

(AP).

35. Extra-departmental Branch Post Master or sub-Post Master — Extra

departmental Post Masters hold civil post. A. Surya Rao v. SPO, 1972 SLR 428;

Superintendent of Post Offices v. P.K. Rajamma, AIR 1977 SC 1677: 1977(3) SCR 664:


1977(3) SCC 260: 1977 Lab IC 904: 1977 SLJ 532: 1977(2) SLR 226: 1977(2) SCJ

321; Jogendra Bahadur v. Senior Supdt. of Post Office, 1972 SLR 799 (All). An extra-

departmental officer in the Postal Department holds a “civil post”. A.P. Augustine v.

Superintendent of Post Offices, 1984(2) SLR 163 (Ker), following Superintendent of

Post Offices v. P.K. Rajamma, 1977(2) SLR 226.

36. Extra Departmental Delivery Agent — Extra departmental delivery agent

holds a “civil post”. Subhas Chandra Das v. Inspector of Post Offices, AIR 1969 Kerala

244: 1968 SLR 337; Jogendra Bahadur v. Senior Superintendent of Post Offices, 1972

SLR 799: 1972 ALJ 693; Superintendent of Post Offices v. P.K. Rajamma, AIR 1977

SC 1677: 1977(3) SCR 664: 1977(3) SCC 260: 1977 Lab IC 904: 1977 SLJ 532:

1977(2) SLR 226: 1977(2) SCJ 321; Union of India v. Kameshwar Prasad, 1997(11)

SCC 650; Sub-Divisional Inspector of Post, Vaikam v. Theyyam Joseph, AIR 1996 SC

1271: 1996(8) SCC 489: 1996(2) JT 457: 1996 Lab IC 1059: 1996(72) FLR 690: 1996

SCC (L&S) 1012: 1996(2) SCJ 370: 1996(2) LLJ 230: 1996(88) FJR 597: 1996(2)

LLN 82.

37. General Manager, Court of Wards — General Manager, Court of Wards

in Bihar holds a civil Post under the State. P.N. Sarkar v. State of Bihar, AIR 1960

Pat 366.

38.. Homeguard — Homeguard appointed under the West Bengal Homeguards

Act, 1962, holds a civil post and is therefore entitled to all protection under Article 311

of the Constitution. Debabrata Banerjee v. Superintendent of Police, 24 Parganas,

1981(1) SLR 568: 1981(1) SLJ 328 (Cal.).

39. Honorary Officers — An Honorary Medical Officer under Government

holds civil post. Rebecea Chand Pillai v. State of Kerala, 1961 KLT 662.

40. Insurance, Medical Practitioner — Medical Practitioner under the

Employee”s State Insurance Act, 1948 does not hold a civil post under the Government.

Dr. Nanigopal Ghose v. State of West Bengal, AIR 1970 Cal 1.

41. Mali in Bihar Raj Bhawan — Mali in Raj Bhawan of Bihar is a servant of

a semi private nature even though he is paid from the Government funds. Lachmi v.

Military Secretary, AIR 1956 Pat 398.

42. Mauzadar in Assam valley — “Mauzadar” in Assam valley whose primary

duty is to collect land revenue and other Government dues with the collection of which

he is entrusted, is responsible for the collection of toll tax, house tax, tauzibahar

revenue, grazing fees and forest dues, has to submit weekly reports upon the condition

of crop, the prevalence of epidemics amongst men or cattle etc., is a holder of civil post

having regard to the system of his recruitment, employment and functions even though

he gets a commission on the collection by way of remuneration. State of Assam v.

Kanak Chandra Dutt, 1967(1) SCWR 228: AIR 1967 SC 884: 1967(1) SCR 679:

1968(1) LLJ 288: 1967(14) FLR 299: 1967(2) SCJ 461.

43. Notary — Notary appointed under Notaries Act, 1952 does not hold a civil

post. Phagu Ram v. State of Punjab, AIR 1965 Punjab 220: 19675 PLR 37.

R.2] GENERAL 31

44. Panel Lawyer — The position of a Panel Lawyer is that of an officer under

the State within the meaning of Article 16(1) of Constitution. Suresh Prakash Aggarwal

v. State of U.P., 1971(2) SLR 326.

45. Public Prosecutor — (i) Office of Public Prosecutor is a Public Office. A

Mohambaram v. M.A. Jayavelu, AIR 1970 Mad 63.

(ii) Public Prosecutor in Andhra Pradesh who is not appointed to the cadre in

State Service does not hold a civil post. B.V. Chalapathi v. State of A.P., 1969(2) Andh

WR 465: 1970 SLR 192.

(iii) Under Orissa Law Officers Rules, the appointment as Public Prosecutor

and Government Pleader is not an appointment to a post. The relationship of master and

servant is not brought by this appointment. The appointee is engaged on certain terms to

do duties assigned to him. Sudhansu Sekhar Misra v. State, 1976(1) SLR 477: 1976 Lab

IC 821.

46. Part-time Employees — A post outside the regularly constituted services

may be a part time employment. State of Assam v. Kanak Chandra Dutt, 1967(1)

SCWR 228: AIR 1967 SC 884: 1967(1) SCR 679: 1968(1) LLJ 288: 1967(14) FLR 299:

1967(2) SCJ 461.

47. Secretary under Bombay Village Panchayat Act — The post though civil

is not under the State. Ranchhodbhai Desaibhai v. Collector, AIR 1967 Guj 62.

48. Secretary under Karnataka Village and Local Boards Act, 1959 — When sub-section (2) of Section 80 of the Karnataka Village and Local Boards Act,

1959 states that subject to the provisions of Rules made under the proviso of Article

309 of the Constitution, the qualifications, powers, duties, remuneration and conditions

of service including disciplinary matters of such Secretary shall be such as may be

prescribed, it leaves no room for doubt that the Secretaries of the Panchayats are

Government servants, like other Government servants, who are subjected to the Rules

to be made under the proviso to Article 309 of the Constitution as regards their service

conditions. R.N.A. Britto v. Chief Executive Officer, AIR 1995 SC 1636: 1995(4) SCC

8: 1995(4) JT 582: 1995(2) SCJ 209: 1995(2) SLR 699: 1995(30) ATC 159: 1995(2)

SLJ 222: 1996(1) LLN 17.

49. Staff Artist of All India Radio — In view of the service conditions and

the Agreement executed, it was held that he holds a civil post. Union of India v. M.A.

Chaudhary, 1975 Lab IC 423: 1975(1) SLR 360.

50. Tehsildar — Tehsildar appointed by Government treasurer holds a civil

post under the state and can claim benefit of Article 311. State of U.P. v. Audh Narain

Singh, AIR 1965 SC 360: 1964(7) SCR 89: 1964(9) FJR 238: 1964(2) SCJ 590.

51. Teacher in Panchayat Service — Teacher under the Gujarat Panchayat

Act is to be treated as a member of the State Civil Service. Mathura Das v. S.D.

Munshaw, AIR 1981 SC 53: 1981(1) SCJ 433. Teacher under Rajasthan Panchayat

Service is the holder of a civil post under the State. Mehtab Ali Khan v. B.D.O.,

Panchayat Samiti, 1981(2) SLR 539.


For the termination of service of temporary teacher for outraging modesty of a

girl student see Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534:

1997(10) JT 461: 1996(8) AD(SC) 539: 1997(1) SLR 270 (SC).

52. Trainees — Those person who were undergoing training with a view to

subsequently take service under the State, and were under an obligation to do so, were

serving in connection with the affairs of the State. Beant Singh Bath v. Union of India,

1969 SLR 304.

53. Village Munsif — Office of village Munsif under the Madras State was an

office under the State. Gazula Dasratha Rama Rao v. State of A.P., AIR 1961 SC 564:

1961(3) SCR 931: 1961(1) SCJ 310.

54. Work Charged Establishment, Chowkidar — CPWD Manual, Vol. III

(1972 Edn). If the services are terminated by way of punishment, he has the right to

insist on the fullest compliance with the provisions of Article 311 as he is a temporary

servant and not a mere causal employee. Ganga Prasad Gurung v. Vijay Kumar, 1982

Lab IC 1884.

55. Dhobis in Military Academy — Dhobis appointed to wash clothes of the

cadets and paying from the funds called “Regimental Fund”, can not be said to be

holders of civil post. Union of India v. Chotelal, AIR 1999 SC 376: 1999(1) SCC 554:

1999(2) SLR 545: 1999(2) SLJ 15: 1999 Lab IC 428: 1999(1) LLN 685.

56. Members of Company Law Board — On the question whether members

of Company Law Board hold a civil post submissions were made that post of a Member

(Technical) Company Law Board was neither an All India Service nor a Civil Service

of the Union nor a Civil post under the Union. However the question was left open to be

decided in an appropriate matter. A.K. Doshi v. Union of India, AIR 2001 SC 1369:

2001(4) SCC 43: 2001(3) JT 367.

57. Kurk Amins appointed on commission basis for recovery of outstanding

dues of the co-operative societies were members of service and government servants.

State of Uttar Pradesh v. Chandra Prakash Pandey, 2001(4) SCC 78: 2001(4) JT 145:

AIR 2001 SC 1298.

58. Employees of statutory canteen maintained by Telecommunication

Department of Government are persons holding civil posts. Bombay Telephone Canteen

Employees” Association, Prabhadevi v. Union of India, AIR 1997 SC 2817: 1997(9)

SCC 723: 1997(6) JT 57: 1997(2) LLN 1038 : 1997(2) LLJ 647: 1997(77) FLR 25:

1997(91) FJR 251: 1997(4) SLR 721.

59. Judge of High Court— The relationship between the Government and

High Court Judges is not of master and servant. They cannot be said to be holding a

post under the Union/State. Union of India v. Pratibha Bonnerjea, AIR 1996 SC 693:

1995(6) SCC 765: 1996 SCC(L&S) 92: 1996(32) ATC 58: 1996(1) SLR 20: 1996(72)

FLR 93: 1996(1) LLN 29.

R.2] GENERAL 33

Clause (g)

60. Delegation of Powers — Under the Central Civil Services (Classification,

Control and Appeal Rules), 1985, Rule 4 states that the Civil services under the Union

shall be classified as Class A,B,C and D posts. Under Rule 6-A the word “group” has to

be substituted for the word “class” wherever the word “class” occurs. The appointment

to Class I (i.e. Group A) service and posts are to be made by the President of India as

per Rule 6 of the C.C.A. Rules. The proviso to Rule 9, however, says that the President

may, by a general or special order and subject to such conditions as he may specify in

such order, delegate to any other authority the power to make such appointments so far

class II, III, IV (i.e. Group B, C, D) are concerned. Rule 9 states that the appointing

authorities are specified in the schedule of CCA Rules, 1985. In other words, the power

of the President to appoint persons to Group B, C, D posts has been delegated but not

the power to appoint to Group A posts. Mohammed Swaleh v. Union of India, 1997(6)

SCC 200: 1997(10) JT 749: 1997(4) SLR 608: 1998(1) SLJ 1.

In the absence of any statutory provision expressly or impliedly permitting the

delegation of disciplinary powers, the disciplinary authority, if decides that disciplinary

action should be taken, must itself frame the charges and hold an inquiry into them. He

cannot be said to have delegated his functions merely by deputing a responsible and

competent official to enquire and report. Union of India v. P.K. Roy, 1968(2) SCJ 503:

1968(II) SCWR 41: 1968 SLR 104: AIR 1968 SC 850; Shardul Singh v. State of M.P.,

AIR 1966 MP 193; Pradyot Kumar v. C.J. of Calcutta, AIR 1956 SC 285: 1955(2) SCR

1331: 1956 SCJ 259; See also Uttar Pradesh Co-operative Land Development Bank Ltd.

v. Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC 741: 1998(9) JT 81: 1999(2)

SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3) SLJ 124.

An employee cannot be removed or dismissed by an authority other than by

which he was appointed unless the appointing authority has made prior delegation of

such authority to such other person or authority in writing. Uttar Pradesh Co-operative

Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC

741: 1998(9) JT 81: 1999(2) SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3)

SLJ 124.

Plea that disciplinary officer was only “in charge of the particular post and

hence incompetent to act” was rejected. G.N. Sundarraja v. Post Master, Kolar,

1990(2) SLR 624 (CAT Bangalore).

The “delegation of the function of the High Court in respect of punishment of

judicial officers” is an expression of width and of wide amplitude to cover within its

ambit the power to take a decision by the Committee from the stage of initiation of

disciplinary proceedings, if necessary, till its logical end, viz., recommendation to the

Government to impose a penalty proposed by the Committee. The recommendation is

by the High Court, the controlling authority under Article 235 of the Constitution.

Therefore, it is difficult to accept the contention that the delegation is only for

imposition of punishment on judicial officers. High Court of Judicature at Bombay v.

Shirishkumar Rangrao Patil, AIR 1997 SC 2631: 1997(6) SCC 339: 1997(2) LLN 470:

1997(76) FLR 659: 1997(2) SCJ 320: 1997(2) UJ 152: 1997(4) SLR 321.


Clause (h)

61. Government Servant or Municipal Servant — The question, whether a

person is a Government servant or a municipal servant can be determined by the

functions which he performs. If he performs the functions relating to a municipal

committee, he is a municipal officer, but if he performs the functions relating to

Government, he is a Government servant. State of Punjab v. Prem Prakash, AIR 1957

Punjab 219: 1957 PLR 270; Ram Chandra v. State of U.P., AIR 1969 All 480.



statute or statutory rules. Government of Andhra Pradesh v. Syed Yousuddin Ahmed,

AIR 1997 SC 3439:1997(7) SCC 24: 1997(7) JT 395: 1997(5) SLR 219: 1998(1) SLJ

91: 1997 Lab IC 3361.

Clause (m)

62. Member of a Service — A person cannot be deemed to be a member of

service unless he is permanently absorbed therein. State of Punjab v. Prem Prakash,

AIR 1957 Punjab 219: 1957 PLR 270; Laxminarayan v. Union of India, AIR 1956 Nag

113. Past service rendered in different service can not be counted towards seniority.

Dev Raj Gupta v. State of Punjab, 2000(8) SLT 375: 2001(4) JT 82.

Where rules so provide a probationer can not claimed to be a member of

service unless the appointed authority so provides. M.P. Chandoria v. State of Madhya

Pradesh, AIR 1996 SC 2397: 1996(11) SCC 173: 1996(73) FLR 1699: 1996(2) UJ 326:

1996(3) SCJ 20: 1996(4) SLR 62.

63. Civilian Post in Defence Service — The CSS (CCA) Rules, 1965 is

applicable to the posts in defence service. Ranjit Kumar Majumdar v. Union of India,

1996(1) SCC 51: 1996(1) SLR 35 (SC): 1995(8) JT 350: 1996 SCC (L&S) 255:

1996(32) ATC 200.

R.3

3. Application — (1) These rules shall apply to every Government

servant including every civilian Government servant in the Defence

Services, but shall not apply to—

(a) any railway servant, as defined in Rule 102 of Vol. I of the

Indian Railway Establishment Code,

(b) any member of the All India Services,

(c) any person in casual employment,

R.3] GENERAL 35

(d) any person subject to discharge from service on less than

one month”s notice,

(e) any person for whom special provision is made, in respect

of matters covered by these rules, by or under any law for

the time being in force or by or under any agreement

entered into by or with the previous approval of the

President before or after the commencement of these rules,

in regard to matters covered by such special provisions.

(2) Notwithstanding anything contained in sub-rule (1), the

President may be order exclude any class of Government servants from

the operation of all or any of these rules.

(3) Notwithstanding anything contained in sub-rule (1), or the

Indian Railway Establishment Code, these rules shall apply to every

Government Servant temporarily transferred to a service or post coming

within exception (a) or (e) in sub-rule (1), to whom, but for such

transfer, these rules would apply.

1[(3A) Notwithstanding anything contained in these Rules, where

any civilian Government servant in the Defence Services is temporarily

made subject to the Army Act, 1950 (46 of 1950), or the Navy Act, 1957

(62 of 1957), or the Air Force Act, 1950 (46 of 1950), these rules shall

continue to apply to such civilian Government servant in the Defence

Services and, for the purpose of discipline, he shall be dealt with under

these rules unless the appropriate authority, for reasons to be recorded in

writing, is of the opinion that sterner action is called for and directs that

he be dealt with under the Act he is subject to.]

(4) If any doubt arises —

(a) whether these rules or any of them apply to any person, or

(b) whether any person to whom these rules apply belongs to a

particular Service, the matter shall be referred to the President, who

shall decide the same.

1 This rule remained in force during the Proclamation of Emergency only in 1971

and now it is no more in operation.


COMMENTARY

S Y N O P S I S

1. Classes of Government servants excluded from the operation of these rules under Sub-

rule (2) .............................................................................................................................. 36

2. Application of Part VI of these rules to work charged establishment ............................... 37

3. Application of rules to temporary Government servants and probationers ...................... 37

4. Civilian Government servants in Defence Services whether entitled to protection and

procedure provided by these rules .................................................................................... 38

5. Sub-rule (3-A), duration of .............................................................................................. 40

1. Classes of Government servants excluded from the operation of these

Rules under Sub-rule (2) — Following classes of Government servants have been

wholly excluded by the President, from the operation of these rules:—.

(1) Ministry of External Affairs: Locally recruited staff in Mission abroad.

(2) Ministry of Communications: (Post & Telegraphs Department).

(i) Extra-departmental agents.

(ii) Monthly rated staff paid contingencies other than those brought on

to regular establishment.

(iii) Monthly-rated work charged and other employees not on regular

establishment.

(iv) Daily rated staff paid from contingencies.

(v) Daily rated workmen paid by the day, week, month, etc.

(vi) All hot weather and monsoon establishments.

(vii) Non departmental telegraphists and telephone operators.

(3) Ministry of Home Affairs: Police officers upto the rank of Inspector of

Police in Delhi Special Police Establishment.

(4) Ministry of Works and Housing: Work-charged personnel of—.

(i) the Central Public Works Department,.

(ii) the President”s Garden Establishment,.

(iii) the Estate Office.

(5) Work charged personnel of—.

(i) The Mangalore Projects.

(ii) The Tuticorin Harbour Project.

R.3] GENERAL 37

2. Application of Part VI of these Rules to Work charged Establishment —

If the order is made by way of punishment without following the prescribed procedure

it is invalid. Murlidhar Yeshwant Mayenkar v. Union of India, 1982(1) SLJ 699:

1982(2) SLR 482; Ganga Prasad Gurung v. Vijay Kumar, 1982 Lab IC 1884.

The principles of natural justice is the best measure if there is absence of

statutory rules or administrative constructions. Asi Mohammad Shri v. Union of India,

1994(1) SLR 637 (CAT New Delhi).

One of the principles of natural justice is that no person shall be a judge in his

own cause or the adjudicating authority must be impartial and must act without any

kind of bias. The said rule against bias has its origin from the maxim known as “Debet

esse Judex in Propria Causa”, which is based on the principle that justice not only be

done but should manifestly be seen to be done. This could be possible only when a

judge or an adjudicating authority decides the matter impartially and without carrying

any kind of bias. Bias may be of different kind and form. It may be pecuniary, personal

or there may be bias as to the subject-matter etc. See Financial Commer. (Taxation)

Punjab v. Harbhajan Singh, 1996(9) SCC 281 relied in Amar Nath Chowdhury v.

Braithwaite and Company Ltd., AIR 2002 SC 678: 2002(2) SCC 290: 2002(1) LLJ

1048: 2002(1) SCJ 268.

3. Application of Rules to Temporary Government Servants and

Probationers — If misconduct is the foundation to pass the order then an enquiry into

misconduct should be conducted and an action according to law should follow. But if it

is motive, it is not incumbent upon the competent officer to have the enquiry conducted

and the service of a temporary employee could be terminated, in terms of the order of

appointment or rules giving one month”s notice or pay salary in lieu thereof. Even if an

enquiry was initiated, it could be dropped midway and action could be taken in terms of

the rules or order of appointment. State of Uttar Pradesh v. Prem Lata Misra, AIR 1994

SC 2411: 1994(4) SCC 189: 1994(27) ATC 558: 1994(2) SLR 708: 1994(2) SLJ 167:

1994(2) LLN 427: 1995(1) LLJ 28.

The services of a temporary Government servant or a probationer can be

terminated under the rules of his employment but if the order visits the public servant

with any evil consequences or casts an aspersion against his character or integrity, it

must be considered to be done by way of punishment and the punishment could be

awarded only after enquiry under these rules. State of Punjab v. Sukhraj Bahadur,

1969(1) SCJ 51: AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701; Asi Mohammad

Shri v. Union of India, 1994(1) SLR 637 (CAT, New Delhi).

Once a casual employee attains the “temporary” status, he becomes entitled to

certain benefits one of which is that he becomes entitled to the constitutional protection

envisaged by the Article 311 of the Constitution and other Articles dealing with

services under the Union of India. See Nar Singh Pal v. Union of India, AIR 2000 SC

1401: 2000(3) SCC 588: 2000(1) LLJ 1388: 2000(96) FJR 502: 2000(2) SLR 592:

2000(3) SLJ 332: 2000 Lab IC 1377: 2000(2) LLN 407: 2000(85) FLR 458.

Article 311 of Constitution extends its protection equally to all Government

servants holding permanent or temporary posts or officiating in any of them.


Purshottam Lal Dhingra v. Union of India, 1958 SCJ 217: 1958 SCR 828: AIR 1958

SC 36; State of U.P. v. Saughar Singh, AIR 1974 SC 423: 1974(1) SCC 218: 1975(1)

SCJ 12: 1974 SLJ 474: 1974(1) SLR 435: 1974(2) SCWR 80; State of Maharashtra v.

V.G. Koppar, AIR 1981 Bom 131.

When employee is appointed on a project and for the duration of that project,

the question of his services continuing automatically thereafter do not arise. IRCON

International Ltd. v. Daya Shankar, AIR 2002 SC 2404: 2002(9) SCC 691: 2001(10) JT

360: 2002 AIRSCW 2620: 2002 Lab IC 2319: 2002(1) LLJ 548: 2002(3) ESC 16:

2002(1) SLR 563 (SC). When the posts temporarily created for fulfilling the needs of a

particular project or scheme limited in its duration come to an end on account of the

need for the project itself having come to an end either because the project was fulfilled

or had to be abandoned wholly or partially for want of funds, the employer cannot by a

writ of mandamus be directed to continue employing such employees as have been

dislodged because such a direction would amount to requisition for creation of posts

though not required by the employer and funding such posts though the employer did

not have the funds available for the purpose. Rajendra v. State of Rajasthan, AIR 1999

SC 923: 1999(2) SCC 317: 1999(1) JT 278: 1999(1) SLR 636 (SC).

A temporary teacher in a leave vacancy cannot be considered as discharged nor

claim the status as discharged employee. Discharge would connote for any other reason

ejusdem generis due to abolition of the post or course of study or such similar

circumstances except for discharge due to misconduct. Such a teacher only will be

eligible to set up preferential claim for appointment but not a teacher who fortuitously

came to be appointed in a leave vacancy much less for a limited period. State of Kerala

v. Mother Anasthasia, Superior General, AIR 1997 SC 1310: 1997(1) SLR 705:

1997(10) SCC 79: 1997(2) LLN 618: 1997(76) FLR 1: 1997 Lab IC 1522.

4. Civilian Government Servants in Defence Services whether Entitled to

Protection and Procedure provided by these Rules — There is a broad division of

Government servants in two classes, namely, those belonging to the Defence

Department and others. Even amongst the Government servants under the Defence

Department there are two sub-categories; those belonging to the Armed Forces who are

governed by the Army Act, Air Force Act and Navy Act, as the case may be, and those

who are not so governed. The former will be having a rank in the force but the civilians

under the Defence Department would be discharging duties akin to civilians elsewhere

and will not be governed by the Army Act, Air Force Act or the Navy Act as they will

not be having any rank in the force. For the service conditions of such civilian

employees the President had made the Rules under Article 309 of the Constitution

known as Civilians in Defence Services (Classification, Control & Appeal) Rules, 1952.

These rules have however been repealed vide Rule 34 of the Central Civil Service

(Classification, Control & Appeal) Rules, 1965. From 1st

December, 1965 the Central

Civil Services (Classification, Control & Appeal) Rules, 1965 apply to every civilian

Government servant in the Defence Services.

These rules merely lay down procedure for matters covered by Article 311 of

the Constitution. Proceedings under Article 311 constitute an exception to the doctrine

of pleasure contained in Article 310. The power contained in Article 310 governs all

R.3] GENERAL 39

Government servants, including those in the services connected with defence. The

benefits of Article 311, which impose limitations on the exercise of this power in cases

of punishment, do not extend to those who hold posts “connected with defence”. If the

employee (holder of posts connected with defence) was not entitled to the protection of

Article 311, the only effect of these 1965 Rules upon his case is that they could be

applied if disciplinary proceedings had been taken against him as the holder of a post

“connected with defence”. In other cases of such servants, where no such disciplinary

proceedings, are instituted, the 1965 Rules, governing procedure for punishments to be

imposed, will not apply at all. The legal obligation to apply them to every case of

punishment, flowing from Article 311, is confined to holders of posts covered by

Article 311. Union of India v. K.S. Subramonian, AIR 1976 SC 2433: 1976 SLJ 539:

1976(2) SLR 519. See also Ranjit Kumar Majumdar v. Union of India, 1996(1) SCC 51:

1996(1) SLR 35 (SC): 1995(8) JT 350: 1996 SCC (L&S) 255: 1996(32) ATC 200.

It was clarified by the Supreme Court in the above cited case that the doctrine

of pleasure contained in Article 310, while subject to Article 311, is not subject to the

Rules or Acts made under Article 309. It was, therefore, held that the Government was

bound to follow the Central Civil Services (Classification, Control & Appeal) Rules,

1965 only where the concerned Government servant was entitled to the protection of

Article 311; but not otherwise. In as much as the plaintiff was held not entitled to the

protection of Article 311 being holder of a post connected with the Defence the

following of the procedure prescribed by CCA Rules was held not to be obligatory. In

other words, the ratio of decision is that though the said Rules by their own force, apply

to holders of civil posts connected with Defence, still the Government is not bound to

follow the procedure prescribed by the said Rules, in the case of such persons. The

Government may choose to follow these Rules, or may not. It was reiterated that since

the said Rules cannot override the pleasure doctrine contained in Article 313, the

concerned Government servant cannot be granted any relief for not following the

procedure prescribed by the said Rules for termination. O. Ramachandra Reddy v.

Director, Defence, Research & Development Laboratory, 1980(1) SLR 490. Also see

V.Y. Thomas v. Commandant, A.D.C., 1982 Lab IC 632: 1982(2) SLR 39 (AP); Hazara

Singh v. Union of India, 1982(1) SLR 623.

Therefore it was held that employees serving in Defence can not claim any

protection under Art. 311 of the Constitution and CCS(CCA) Rules, 1965, which have

been framed under Art. 309 and subject to Art. 311. Union of India v. Indrajit Datta,

1995 Supp (3) SCC 229: 1995(5) SLR 228.

Income Tax Officer, while exercising quasi judicial functions, completed

assessments in an undue haste and conferred undue favour upon the assessees and in

violation of Conduct rules. It was held that there was no immunity from disciplinary

proceedings for a person exercising quasi judicial functions. Government is not

precluded from initiating disciplinary proceedings against such employee. Union of

India v. K.K. Dhawan, 1993(1) SLR 700: 1993(1) SLJ 396.

The disciplinary action can be taken in the following cases:

i) Where the officer had acted in a manner as would reflect on his reputation

for integrity good faith or devotion to duty;


ii) if there is prima facie material to show recklessness or misconduct in the

discharge of his duty;

iii) if he has acted in a manner which is unbecoming of a government servant;

iv) if he had acted negligently or that he omitted the prescribed conditions

which Are essential for the exercise of the statutory powers;

v) if he had acted in order to unduly favour a party;

vi) if he had been actuated by corrupt motive however, small the bribe may be

because Lord Coke said long ago “though the bribe may be small, yet the fault

is great.”

While laying down above instances it has been held that the instances

catalogued are not exhaustive but at the same time for a mere technical violation or

merely because the order is wrong and the action not falling under the above

enumerated instances, disciplinary action is not warranted. Union of India v. K.K.

Dhawan, AIR 1993 SC 1478: 1993(1) SCR 296: 1993(2) SCC 56: 1993(1) JT 236 (SC):

AIR 1993 SC 473: 1993 Lab IC 1028: 1993(1) SLJ (SC) 102: 1993(2) ATC 1: 1993(1)

Cur LR 415: 1993(66) FLR 443: 1993(1) LLJ 777: 1993(1) LLN 1119: 1993 SCC

(L&S) 325: 1993(1) SLR 700: 1993 AIR SCW 1361: 1993(1) SPJ 396 see also Union of

India v. R.K. Desai, 1993(2) SCC 49; Union of India v. A.N. Saxena, 1992(3) SCC 123:

1992(4) SLR 11 (SC); Zunjarrao Bhikaji Nagarkar v. Union of India, AIR 1999 SC

2881: 1999(7) SCC 409: 1999(5) JT 366: 1999(112) ELT 772: 1999(7) SLT 66:

1999(94) ECR 29: 2000(6) SLR 276 (SC).

5. Sub-rule (3-A), Duration of — This Sub-rule remained in force till the

emergency proclaimed on 3rd

December, 1971 was in force.

R.4-7] CLASSIFICATION 41

PART II

CLASSIFICATION R.4-7

4. Classification of Services — (1) The Civil Services of the

Union shall be classified as follows:—

(i) Central Civil Service, Group A;

(ii) Central Civil Service, Group B;

(iii) Central Civil Service, Group C;

(iv) Central Civil Service, Group D;

(2) If a Service consists of more than one grade, different grades of

such Service may be included in different groups.

5. Constitution of Central Civil Services — The Central Civil

Services, Group “A”, Group “B”, Group “C” and Group “D” shall

consist of the services and grades of service specified in the Schedule.

6. Classification of Posts — Civil Posts under the Union other

than those ordinarily held by persons to whom these rules do not apply,

shall, by a general or special order of the President, be classified as

follows:—

(i) Central Civil Posts, Group A;

(ii) Central Civil Posts, Group B;

(iii) Central Civil Posts, Group C;

(iv) Central Civil Posts, Group D;

6A. All references to Central Civil Service/Central Civil Posts,

Class I, Class II, Class III, Class IV in all Rules, Orders, Schedules,

Notifications, Regulations, Instructions in force, immediately before the

commencement of these rules shall be construed as references to Central

Civil Service/Central Civil Posts, Group “A”, Group “B”, Group “C”,

Group “D”, respectively, and any reference to “Class or Classes” therein

in this context shall be construed as reference to “Group or Groups”, as

the case may be.

42 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R.4-7

7. General Central Service — Central Civil Posts of any Group

not included in any other Central Civil Service shall be deemed to be

included in the General Central Service of the corresponding Group and

a Government servant appointed to any such post shall be deemed to be

a member of that Service unless he is already a member of any other

Central Civil Service of the same group.

COMMENTARY

S Y N O P S I S

1. Classification of Civil Services of the Union.. ................................................................. 43

2. Constitution of Central Civil Services .............................................................................. 43

3. Classification of posts ...................................................................................................... 43

4. Grade and class, meaning of............................................................................................. 45

5. Post, meaning of .............................................................................................................. 47

6. Posts and judicial review .................................................................................................. 47

7. Permanent post, meaning of ............................................................................................. 48

8. Temporary post, meaning of ............................................................................................ 48

9. Temporary posts and judicial review................................................................................ 48

10. Tenure post, meaning of ................................................................................................... 49

11. Cadre - meaning and Constitution of ................................................................................ 49

12. Cadre, integration of ........................................................................................................ 49

13. Joint cadre for Union Territories ...................................................................................... 51

14. Ex-cadre posts are temporary ........................................................................................... 51

15. Ex-cadre posts, creation and abolition of ......................................................................... 51

16. Cadre and judicial review ................................................................................................. 52

17. Rank, meaning of ............................................................................................................ 52

18. Office under the State: Law Officers of High Court ...................................................... 52

19. Constitution of Service or creation of a post .................................................................... 52

20. Creation and abolition of posts ......................................................................................... 52

21. Equation of posts in new department ............................................................................... 54

22. Abolition of post and compulsory transfer to University ................................................. 54

23. Abolition of post and transfer of company ....................................................................... 55

24. Claim of holder of post..................................................................................................... 55

25. Services and posts in Union Territory .............................................................................. 56


26. Appointment made against gazetted post without gazetted status .................................... 56

27. Promotion with condition to draw emoluments of lower post .......................................... 56

28. General Central Service, a residuary service .................................................................... 56

29. Service, member of .......................................................................................................... 56

1. Classification of Civil Services of the Union — Rule 4 lays down that the

Civil Services of the Union shall be classified as Central Civil Services, Group A,

Group B, Group C and Group D. Present Rule was substituted vide Notification dated

the 11th

November, 1975 for old rule 4 which ran as follows:—.

“4. Classification of Services — (1) The Civil Services of the Union shall be

classified as follows:-.

(i) Central Civil Services, Class I;.

(ii) Central Civil Services, Class II;.

(iii) Central Civil Services, Class III;.

(iv) Central Civil Services, Class IV;.

2. If a service consists of more than one grade, different grades of such service

may be included in different classes”.

2. Constitution of Central Civil Services — Rule 5 deals with the constitution

of Central Civil Services. This rule was substituted vide Notification dated the 11th

November, 1975 for old Rule 5 which ran as follows:.

“6. Constitution of Central Civil Services — The Central Civil Services, Class

I, Class II, Class III and Class IV shall consist of the Services and grades of Services

specified in the Schedule”.

3. Classification of Posts — Rule 6 was substituted vide Notification dated

11th November, 1975 for the old Rule 6 which was as under:—.

“6. Classification of Posts — (1) Civil Posts under the Union other than those

ordinarily held by persons to whom these rules do not apply, shall by a general or

special order of the President, be classified as follows:—.

(i) Central Civil Posts, Class I;

(ii) Central Civil Posts, Class II;.

(iii) Central Civil Posts, Class III;.

(iv) Central Civil Posts, Class IV;.

(2) Any order made by competent authority, and in force immediately before

the commencement of these rules, relating to classification of civil posts under the

Union shall continue to be in force until altered, rescinded or amended by any order

made by the President under Sub-rule (1)”.


The President vide aforesaid Notification has directed that all civil posts under

the Union shall (subject to such exceptions as Government may, by any general or

special order, make from time to time), be reclassified in Group A, Group B, Group C

and Group D, as the case may be, as indicated below:—.

Existing Classification Revised Classification.

Class I Group A.

Class II Group B.

Class III Group C.

Class IV Group D.

Provided that—.

(i) the classification of any posts created or deemed to have been created

on or after 1.1.1973 in revised scale but before the date of issue of this order, as

specific additions to cadres existing prior to 1.1.1973, shall be the same as that of the

posts in the cadres to which they have been added, and.

(ii) any other posts not covered by (i) above created or deemed to have

been created in the revised scale of pay on or after 1.1.1973 but before the date of issue

of this order having a classification higher than the one envisaged by para 2 of this

order shall be reclassified in terms of that paragraph but without prejudice to the status

of the existing incumbent of such posts.

2. Subject to reclassification of posts as indicated above and also subject to

such exceptions as Government may, by any general or special order, make from time,

all Central Civil Posts created subsequent to the issue of this order shall be classified as

follows:—.

Sl.

No.

Description of Posts Classification of

Posts

1. A Central Civil Post carrying a pay or a scale of pay with a

maximum of not less than Rs. 1,300

Group A


maximum of not less than Rs. 900, but less than Rs. 1,300

Group B


maximum of over Rs. 290, but less than 900.

Group C

4. A Central Civil Post carrying a pay or a scale of pay the

maximum of Rs. 290, or less.

Group D


Provided that posts created subsequent to the issue of this order as specific

additions to existing cadres shall have the same classification as posts in the cadre to

which they are added.

Note — for the purpose of this order,—.

(i) “pay” has the meaning assigned to it in F.R. (21)(a)(i).

(ii) the pay or scale of pay of a post means the pay or scale or pay prescribed

under the Central Service (Revised Pay) Rules, 1973.

4. Grade and Class, Meaning of — (i) Appointment are said to be in the same

class when they are in the same department, and bear the same designation or have been

declared by the Government of India to be in the same class. Appointment in the same

class are sometimes divided into grades according to pay (Article 29, Civil Service

Regulations).

Where there are a larger number of employees in any department and where the

employees are not likely to get their promotion in the near future because of their

comparatively low position in the seniority list, Government has found it necessary that,

in order to remove frustration, the employees are to be given a higher grade in terms of

emoluments while retaining them in the same category. This is what is generally known

as the time bound promotion. Such a time bound promotion does not effect the normal

seniority of those higher up. Dwijen Chandra Sarkar v. Union of India, AIR 1999 SC

598: 1999(2) SCC 119: 1999(1) SLR 39: 1999(1) LLJ 338: 1998(1) SCJ 519: 1998 Lab

IC 914: 1998(1) LLN 621.

It is permissible for the Government to prescribe appropriate qualifications in the

matter of appointment or promotion to different posts. The case put forth on behalf of the

respondents is that when they joined the service the requirement of passing the

matriculation was not needed and while they are in service such prescription has been made

to their detriment. But it is clear that there is no indefeasible right in the respondents to

claim for promotion to a higher grade to which qualification could be prescribed and there

is no guarantee that those rules framed by the Government in that behalf would always be

favourable to them. State of Jammu & Kashmir v. Shiv Ram Sharma, AIR 1999 SC 2012:

1999(3) SCC 653: 1999 Lab IC 2096: 1999(2) SLR 247 (SC).

Selection grade is provided to avoid stagnation at the highest slab in the grade.

It implies that when an employee has reached the maximum of his scale or he continues

to work in the same scale for a number of years, he may lose interest on account of

stagnation. Therefore, the Government has evolved the system of giving incentives for

such an employee by providing for selection grade. This is quite different from

promotion to a higher post and there is no question of any reservation in granting a

selection grade since that will run counter to the very purpose of providing selection

grade. State of Punjab v. Surjit Singh, AIR 2000 SC 3385: 1999(9) SCC 71: 2000 Lab

IC 1847: 2000(7) SLR 633 (SC).

Where an employee in order to be eligible to get the selection grade pay has to

complete 15 years of service and he is not to be given such scale of pay before he fulfils

the said eligibility criteria. It follows as a consequence that no employee can claim


selection grade pay before completing 15 years of service on any ground including the

ground that an employee junior to him has already been given such grade of pay. State

of Punjab v. Kuldip Singh, AIR 2002 SC 2492: 2002(5) SCC 756: 2002(5) JT 205:

2002(4) SLR 771 (SC): 2002 Lab IC 2621: 2002(2) BLJR 1596: 2002(94) FLR 871:

2002 SCC(L&S) 814: 2002(3) SLJ 202.

When appointment on ad-hoc basis was made by clearly stipulating that the ad

hoc service shall not be counted towards seniority, subsequent claim of selection grade

by including the service referred on ad hoc basis in the past service is not proper. Held

that service of employees commenced on regular appointment after selection of UPSC

and not earlier. State of Haryana v. Haryana Veterinary & A.H.T.S. Asson., AIR 2000

SC 3020: 2000(8) SCC 4: 2000(10) JT 561: 2000 Lab IC 3127: 2000(4) LLN 588:

2000(5) SLR 223 (SC).

Even though an employee cannot claim to have a vested right to have a

particular position in any grade, but all the same he has the right of his seniority being

determined in accordance with the Rules which remained in force at the time when he

was borne in the Cadre. P. Mohan Reddy v. E.A.A. Charles, AIR 2001 SC 1210:

2001(4) SCC 433: 2001(2) JT 1: 2001(1) SLR 787 (SC): 2001(2) Andh LD 57: 2001

SCC (L&S) 718.

In the absence of any specific rule holding that the continuous length of service

would be the basis for seniority in a particular grade, entry into the grade is the normal

rule for promotion. Union of India v. C. Jayaprakasan, 2001(4) SLR 29 (SC): 2001(5)

JT 557.

“Promotion” thus not only covers advancement to a higher grade. In service

law also the expression “promotion” has been understood in the wider sense and it has

been held that “promotion can be either to a higher pay scale or to a higher post”. State

of Rajasthan v. Fateh Chand Soni, 1996(1) SCC 562: 1995(9) JT 523: 1996 SCC(L&S)

340: 1996(32) ATC 488: 1996(1) SLR 1.

(ii) All officials working in the same scale of pay in a department, although

holding posts with different designations, shall be deemed to be holding posts in the

same grade, because their rank in the same department will be the same and equal to

one another. Hari Nandan Sharan Bhatnagar v. S.N. Dikshit, AIR 1970 SC 40: 1970(1)

SCR 421: 1969(2) SCC 245: 1969(2) SCJ 862: 1970 Lab IC 1.

(iii) The word “grade” has various shades of meaning in the service

jurisprudence. It is sometimes used to denote to pay scale and sometimes a cadre. A.K.

Subraman v. Union of India, 1975(2) SCJ 357: AIR 1975 SC 483: 1975(2) SCR 979:

1975(1) SCC 319: 1975 Lab IC 254: 1975(1) SLR 380: 1975(1) LLJ 338.

(iv) Meaning of expression “regular service in grade” — The expression “regular

service of eight years in the grade” would connote rendering eight years of service in the

organisation to which he has been appointed. In a somewhat similar situation, the Court

considered similar expression in the case of Union of India v. K. Savitri, (1998) 2 Scale 221,

where it has been held that the past service of redeployed surplus employee cannot be

counted for his seniority in the new organisation and equally, the past experience also

would not count as the so- called past service rendered will not be service in the grade.


Union of India v. G.R.K. Sharma, AIR 1999 SC 535: 1998(6) SCC 186: 1998(7) JT 241:

1998(80) FLR 909: 1999 Lab IC 219: 1998(4) LLN 27.

When right from the inception even under the Government the post of

conductor and the post cleaner-cum-conductor were borne in two different grades and

belong to two different cadres, by mere nomenclature, the expression “cleaner-cum-

conductor” cannot be held to be the same as “Conductor”. Himachal Road Transport

Corporation Conductors” Union v. Himachal Road Transport Corporation, 2001(4)

SLR 27 (SC): 2001(5) JT 554.

5. Post, Meaning of — A post denotes an office. A “post under the State” means a

post under the administrative control of the State. State of Assam v. Nanak Chandra Dutt,

AIR 1967 SC 884: 1967(1) SCR 679: 1968(1) LLJ 288: 1967(14) FLR 299: 1967(1) SCWR

228. One step lower mean the appointments on a lower post. State of Haryana v. Kanta

Rani, 2000(10) JT 496: 2000(87) FLR 568: 2000(5) SLR 178 (SC).

An individual applicant for any particular post does not get a right to be

enforced by a mandamus unless and until he is selected in the process of selection and

gets the letter of appointment. Union of India v. Tarun K. Singh, AIR 2002 SC 2196:

2001 AIRSCW 1928: 2001(2) Pat LJR 81: 2001(2) BLJ 162: 2002(2) SLR 195 (SC).

Continuance or abolition of posts is within the power of the employer and any

decision in that regard is not available to be interfered with by the Court unless it is

held to be vitiated by mala fide or arbitrary. Notified Area Council, Pipili v. Gahar

Mohammad, 2001(3) JT 576: 2002(2) SLR 199 (SC).

6. Posts and judicial review— In the matter of equation of posts or equation

of pay, the same should be left to the Executive Government, who can get it determined

by expert bodies like Pay Commission, and such Expert body would be the best judge to

evaluate the nature of duties and responsibilities of posts and when such determination

by a Commission or Committee is made the Court should normally accept it and should

not try to tinker with such equivalence unless it is shown that it was made with

extraneous consideration. Kshetriya Kisan Gramin Bank v. D.B. Sharma, 2001 AIR SC

168: 2001(1) SCC 353: 2000(2) JT (Supp) 596: 20001 AIRSCW 279: 2001(1) Bank

CLR 405: 2001 SCC (L&S) 1000: 2001(1) All WC 279: 2000(5) SLR 770 (SC) relying

upon State of U.P. v. J.P. Chaurasia, 1979(1) SCC 121.

In one case it was contended that if the post of a Lecturer in Gandhian Studies

is given to a person who has obtained an M.A. degree in other subjects, the

opportunities available to those like him, who have a specialisation in Gandhian Studies

from M.A. level onwards, get reduced; and this would discourage people from taking a

specialisation course in Gandhian Studies at the M.A. level. Held that this argument,

however, addresses itself on the policy relating to prescribing qualifications for the

various posts. Such a policy has to be formulated by the University is accordance with

the norms laid down by the University Grants Commission or any other expert body

that may have been specified under the relevant statues. Court cannot examine such a

policy or reframe it. Punjab University v. Narinder Kumar, AIR 2000 SC 3457:

1999(10) JT 545: 1999(9) SCC 8: 2000(7) SLR 1 (SC).


7. Permanent Post, Meaning of — Permanent post means a post carrying a

definite rate of pay sanctioned without the limit of time [F.R. 9(22)]; Baleshwar Dass v.

State of U.P., AIR 1981 SC 41: 1981(1) SCR 449: 1980(4) SCC 226: 1981(1) SLJ 223:

1980(3) SLR 422: 1980 SCC (Lab) 531: 1981(1) SCWR 244: 1981(13) Lawyer 33:

1981(1) SCJ 421: 1980 All CJ 493.

8. Temporary Post, Meaning of — Temporary post means a post carrying a

definite rate of pay sanctioned for a limited time. [F.R. 9(22)]; Baleshwar Dass v. State

of U.P., AIR 1981 SC 41: 1981(1) SCR 449: 1980(4) SCC 226: 1981(1) SLJ 223:

1980(3) SLR 422: 1980 SCC (Lab) 531: 1981(1) SCWR 244: 1981(13) Lawyer 33:

1981(1) SCJ 421: 1980 All CJ 493.

Creation of post does involve financial implication. Hence financial health of a

particular institution plays important role to which courts also keep in mind. The Court

does exercise its restrain where facts are such where extent of creation of post creates

financial disability. But this does not give largess to an institution to engage larger

number of daily wage workers for long number of years without absorbing them or

creating posts which constitutes an unfair labour practice. If finances are short

engagement of such daily wage workers could only be for a short limited period if

continuous work is required it could only do so by creating permanent post. If finances

are not available take such work which is within financial mean. Why take advantage

out of it at the cost of workers. Gujarat Agricultural University v. Rathod Labhu

Bechar, AIR 2001 SC 706: 2001(3) SCC 574: 2001(2) JT 16: 2001(1) SLR 519 (SC):

2001(1) Guj LH 465: 2001 SCC (L&S) 613: 2001(1) UPLBEC 834.

For termination of temporary post of a teacher see Avinash Nagra v. Navodaya

Vidyalaya Samiti, 1997(2) SCC 534: 1997(10) JT 461: 1996(8) AD(SC) 539: 1997(1)

SLR 270 (SC).

9. Temporary posts and judicial review — When the posts temporarily

created for fulfilling the needs of a particular project or scheme limited in its duration

come to an end on account of the need for the project itself having come to an end

either because the project was fulfilled or had to be abandoned wholly or partially for

want of funds, the employer cannot by a writ of mandamus be directed to continue

employing such employees as have been dislodged because such a direction would

amount to requisition for creation of posts though not required by the employer and

funding such posts though the employer did not have the funds available for the

purpose. Rajendra v. State of Rajasthan, AIR 1999 SC 923: 1999(2) SCC 317: 1999(1)

JT 278: 1999(1) SLR 636 (SC).














SC 923: 1999(2) SCC 317: 1999(1) JT 278: 1999(1) SLR 636 (SC).

10. Tenure Post, Meaning of — Tenure post means a permanent post which an

individual Government servant may not hold for more than a limited period. [F.R. 9

(30-A)].

11. Cadre (i) Meaning of — (i) Cadre means the strength of a service or a part

of a service which is sanctioned as a separate unit. [F.R. 9(4)]. Also see Rule 2.9. in the

Punjab Civil Services Rules, Volume I, Chapter II in which cadre is defined, which

means the strength of a service or a part of service sanctioned as a separate unit.

Satwant Kochhar v. State of Punjab, 1983(1) SLJ 24.

Cadre ordinarily may include permanent posts, but posts may be created of a

temporary nature to perform the ordinary work for which permanent posts already exist

in the cadre. Such new posts are temporary and are temporary additions to the cadre of

a service. A cadre, therefore, may consist wholly of permanent posts or it may include

within its fold permanent as well as temporary posts. G.R. Luthra v. Administrator (Lt.

Governor of Delhi), 1973 SLJ 115: 1973(1) SLR 54; A.K. Subraman v. Union of India,

1975(2) SCJ 367: AIR 1975 Lab IC 483: 1975(1) SLR 380.

(ii) Cadre — Punjab Civil Services Rules apparently envisage a cadre which is

for permanent posts for the performance of the ordinary work of such posts, though

temporary posts may be created as an addition to a cadre obviously to meet a

contingency and for a time. Jugraj Singh v. State of Punjab, 1969 SLR 622 (FB), also

see Lajpat Rai Margo v. Governor of Haryana, AIR 1971 P&H 113, wherein it was

held that the word “cadre” would include both permanent and temporary posts.

(iii) Cadre, Constitution of — It is open to the State Government to constitute

as many cadres as they choose according to administrative convenience and expediency.

Per Goswami J., in C.P. Damodaran Nayar v. State of Kerala, 1974(1) SLR 488: AIR

1974 SC 1343: 1974(2) SCR 867: 1974(4) SCC 325: 1974 Lab IC 994; Raj Nandan

Prasad Singh (Dr) v. State of Bihar, 1975(1) SLR 258; Des Raj Dua v. Lt. Governor,

Delhi, 1982(2) SLJ 326: 1982(2) SLR 681; Satwant Kochhar v. State of Punjab,

1983(1) SLJ 24.

Government has the power to create a cadre, to split a cadre or to amalgamate

to separate cadres into one. The only restriction in the matter of splitting or

amalgamation of cadres is that it must be done on a rational and reasonable differentia.

B.M. Shukla v. State of Bihar, 1976(1) SLR 256; State of Kerala v. M.K. Krishnan Nair,

1978(1) SLR 499: 1978(2) SCJ 531; V.R. Shambulinga v. State of Karnataka, 1980 SLJ

425:1980(2) SLR 413.

12. Cadre, Integration of — Article 16 and a fortiori also Article 14 do not

forbid the creation of different cadres for Government service. And if that be so, these

two Articles equally cannot stand in the way of the State integrating different cadres

into one cadre. It is entirely a matter for the State to decide whether to have several

different cadres or integrated cadre in its services. Reserve Bank of India v. N.C.


Paliwal, AIR 1976 SC 2345: 1977(1) SCR 403: 1976(4) SCC 838: 1976 SLJ 569:

1976(2) SLR 774.

(i) When recruits from two sources have come into a service it is essential to

fix inter se seniority for a proper integration of the cadre. Bishan Sarup Gupta v. Union

of India, AIR 1974 SC 1618: 1975(1) SCR 104: 1975(3) SCC 116: 1974(2) SLR 186.

Also see Mervyn Continho v. Collector of Customs, 1967(1) SCJ 574: 1966(3) SCR

600: AIR 1967 SC 52: 1967 SLR 1; S.M. Pandit v. State of Gujarat, AIR 1972 SC 252:

1972(4) SCC 778: 1972 SLR 79: 1972 Lab IC 155.

(ii) While integrating two separate units into one cadre the number of

promotional posts available to one unit cannot be reduced to a very low figure as

compared with promotional opportunities open to the officers in the other wing. State of

Mysore v. M.H. Krishna Murthy, 1974(1) SCJ 54: 1972 SLR 832: 1972(II) SCWR 591.

(iii) Where directly recruited as well as promotees form one class, they are both

known by the same designation, they have same scales of pay, they discharge the same

functions, the posts held by them are interchangeable and there is nothing to show that

the two groups are kept apart, if they are merged together in the same class, it is not

competent to the Government thereafter to discriminate between the two groups in the

matter of further promotion. Ramchandra Shankar Deodhar v. State of Maharashtra,

1974(1) SLR 470: AIR 1974 SC 259: 1974(2) SCR 216: 1974(1) SCC 317: 1974 Lab IC

165.

(iv) The Government in exercise of its administrative authority is entitled to

group cadres of service for the purpose of giving representation to the scheduled castes

but this is subject to the rule that such representation should not be excessive. Director

General of Posts and Telegraphs v. N. Natarajan, 1971(1) SLR 408.

(v) Integration or disintegration of Cadres is an executive act. Held that

direction by High Court for merger of two statutory services without even referring to

the relevant Recruitment Rules is patently illegal. Association for the Officers of the

W.B. Audit & Accounts Service v. W.B. Audit & Accounts Service Association, 1995

Supp (4) SCC 44: 1996(32) ATC 65: 1995(8) SLR 657.

In New Bank of India Employees” Union v. Union of India, 1996(8) SCC 407:

1997(2) SLR 348 (SC), placement of officers of a particular bank, after its

amalgamation with another bank was the subject matter of challenge and in that

context, this Court had observed: “The legal position is fairly settled that no scheme of

Amalgamation can be fool proof and a Court would be entitled to interfere only when it

comes to the conclusion that either the scheme is arbitrary or irrational or has been

framed on some extraneous consideration.” What has been observed in the case of

amalgamation, would equally apply to a case of restructuring of the cadre and

placement and fitment of the existing employees in the restructured cadre. K.

Thimmappa v. Chairman, Central BD. Of Dirs. SBI, AIR 2001 SC 467: 2001(2) SCC

259: 2001(1) JT 347: 2001(1) SLR 625 (SC): 2001(3) All Mah LR 807: 2001(1) Bank

CLR 389: 2001 SCC (L&S) 374; See also Tarsem Lal Gautam v. State Bank of Patiala,

1988(3) SCR Supp 479: AIR 1989 SC 30: 1989(1) SCC 182: 1989(5) SLR 396 (SC):


1988(1) JT 184: 1989 Lab IC 1138: 1988(2) ATLT (SC) 560: 1989 SCC (Lab) 139:

1989 BankJ 67: 1989(1) Bank CLR 1: 1989(1) UPLBEC 5: 1989(1) ATR 236.

Integration or disintegration of Cadres is an executive act. It was held that

direction by High Court for merger of two statutory services without even referring to

the relevant Recruitment Rules is patently illegal. Association for the Officers of the

W.B. Audit & Accounts Service v. W.B. Audit & Accounts Service Association, 1995

Supp (4) SCC 44: 1996(32) ATC 65: 1995(8) SLR 657.

13. Joint Cadre for Union Territories — If persons employed in Union

Territories are employed in connection with the affairs of the Union, their making a

joint cadre for such territories would obviously be within the scope of Article 309.

Jaichand v. Union of India, 1969 SLR 386 Delhi (DB).

14. Ex-cadre Posts are Temporary — What are described as ex-cadre posts

are essentially temporary in nature and persons who have been allowed to officiate in

these posts cannot be said to have received any substantive right to hold these posts.

Gurdev Singh Gill v. State of Punjab, 1968 SLR 538.

15. Ex-cadre Posts, Creation and Abolition of — (i) It is essentially a matter

for the Government to decide. It is not open to the Court to go behind the wisdom of the

decision and substitute its own opinion for that of the Government. The decision to

abolish the post should, however, be taken in good faith and be not used as a cloak or

pretence to terminate the services of a person holding that post. On abolition of post the

lien of permanent hand holding the ex-cadre post will stand revived to his permanent

post. State of Haryana v. Des Raj Sangar, AIR 1976 SC 1199: 1976(2) SCR 1034:

1976(2) SCC 844: 1976(1) SLR 191: 1976 SLJ 222: 1976 Lab IC 849.

(ii) A State Government cannot create ex-cadre post of All India Services. This

will create parallel services of State cadre and the all India cadre having the same

functions. A.I. Iyppu v. State of Tamil Nadu, 1974(1) SLR 497 (SC): AIR 1974 SC 555:

1974(2) SCR 348: 1974(4) SCC 3.

(iii) The encadring of posts can be done only on certain fact situations existing

Government in consultation with the State Government and on being satisfied that an

enhancement in the cadre strength or encadring of certain posts is necessary in the

administrative interest of the States concerned. Until such encadrement takes place, no

body could stake a claim to consider their case for promotion to those ex-cadre posts.

Tamil Nadu Administrative Service Officers Association v. Union of India, AIR 2000

SC 1898: 2000 SC(5) 728: 2000(3) LLN 474: 2000(2) SLR 659 (SC).

Article 207 does not itself provide for the procedure for abolition of a

permanent post nor the mode of appointment to another post nor for the manner in

which the employee has to exercise the option. It only provides for the consequence of

a permanent post being abolished, the consequence being that the employee shall have

the option of accepting another appointment in which event he can count his previous

service for the purpose of calculating the qualifying period for pension. When there was

in fact no abolition of the Government posts under Article 207, there was no question of

the appellants exercising any option or surrendering their status under that Article at all.

The reliance by the High Court on Article 207 to decide the appellants status was, in the


circumstances wholly misplaced. Jawahar Lal Sazawal v. State of Jammu and Kashmir,

AIR 2002 SC 1187: 2002(2) SCR 66: 2002(3) SCC 219: 2002(2) LLJ 836: 2002(2) SLJ

284: 2002(2) SCJ 188: 2002(2) SLR 412.

16. Cadre and judicial review — Cadre Rules require that the Central

Government has to re-examine the strength and composition of each cadre in consultation

with the State Government concerned and make such alteration therein as it deems fit. If

there has been an infraction of the provisions and no explanation is forth coming from the

Central Government, indicating the circumstances under which the exercise could not be

undertaken, the aggrieved party may well approach a Court and a Court in its turn would be

well within its jurisdiction to issue appropriate directions, depending upon the

circumstances of the case. When certain power has been conferred upon the Central

Government for examining the cadre strength, necessarily the same is coupled with duty to

comply with the requirements of the law and any infraction on that score cannot be whittled

down on the hypothesis that no vested right of any employee is being jeopardised. S.

Ramanathan v. Union of India, 2001(1) SLR 616 (SC): 2001(5) JT 494.

17. Rank, Meaning of — The meaning attached to the word “rank” is that it is

a class or grade of service. One rank is distinguished from another only by the

classification of services or posts within which they respectively fall. S.K. Srivastava v.

Union of India, 1971(2) SLR 453 (Delhi) : 1971(1) ILR (Delhi) 754 (DB).

18. Office under the State: Law Officers of High Court — In order that a

post or position should be an “office” under the State, it is not necessary that the

incumbent must be a servant of the State. The posts or positions of the law officers in

the High Court are “offices”. State of U.P. v. B.N. Srivastava, AIR 1972 All 460.

19. Constitution of Service or Creation of a Post — No limitation can be

imposed on the Government or a statutory body in its choice of constitution of service

or creation of a post, to perform the duties enjoyed on Government or statutory body.

Parmanand Garg v. Municipal Corporation, 1973 SLJ 293.

Appointments to any public post must be absolutely transparent and fair and

must be in accordance with the prescribed procedure. This is the reason why this Court

has been indicating that even ad-hoc appointments should not be encouraged as far as

possible and should be adhered to only when public exigencies require and appointment

in accordance with the prescribed procedure would take a fairly long time and non-

filling up of the posts would be against the public interest. Dilip Kumar Tripathy v.

State of Orissa, AIR 1997 SC 440: 1996(10) SCC 373: 1996(3) SCJ 239: 1996(3) SLJ

112: 1996(5) SLR 640: 1997(75) FLR 306.

20. Creation and Abolition of Posts — (i) The power to create or abolish a

post is not related to the doctrine of pleasure. It is matter of governmental policy. Every

Sovereign Government has this power in the interest and necessity of internal

administration. The creation or abolition of post is dictated by policy decision,

exigencies of circumstances and administrative necessity. The creation, the continuance

and the abolition of post are all dictated by the Government in the interest of

administration and general public. The State action of abolition of a civil post must be

the result of bona fide exercise of inherent power of the State. Ramanatha Pillai v.


State of Kerala, 1974(1) SCWR 1: AIR 1973 SC 2641: 1974(1) SCR 515: 1973(2) SCC

650: 1974(1) SLR 225; State of Haryana v. Des Raj Sangar, AIR 1976 SC 1199:

1976(2) SCR 1034: 1976(2) SCC 844: 1976(1) SLR 191: 1976 SLJ 222: 1976 Lab IC

849; Dr. N.C. Singhal v. Union of India, AIR 1980 SC 1255: 1980(3) SCR 44: 1980(3)

SCC 29: 1980(2) SLR 118: 1980(2) SLR 118: 1980 SLJ 408; V.R. Shambhulinga v.

State of Karnataka, 1980(2) SLR 413; Union of India v. T. Ramaiah, 1982(2) SLR 442.

(ii) There is no fundamental right or any kind of right in the incumbents of

posts under the Government that these posts must be continued for any amount of time.

The Government has the discretion to create and abolish posts. The incumbents of the

posts so abolished automatically go out of the service. Dr. S.C. Sharma v. Union of

India, AIR 1970 Delhi 1: 1970 Lab IC 31: 1971(2) SLR 424.

Even when there is a vacancy, the State is not bound to fill up such vacancy nor

is there any corresponding right vested in an eligible employee to demand that such

post be filled up. This is because the decision to fill up a vacancy or not vests with the

employer who for good reasons; be it administrative, economical or policy; decide not

to fill up such posts. This principle applies with all the more force in regard to the

creation of new vacancies like by encadrement of new posts; more so when such

encadrement or creation of new posts is statutory controlled. Tamil Nadu Administrative

Service Officers Association v. Union of India, AIR 2000 SC 1898: 2000 SC(5) 728:

2000(3) LLN 474: 2000(2) SLR 659 (SC); See also State of Haryana v. Subhash

Chandra Marwaha, 1974(3) SCC 220: 1973(2) SLR 137 (SC).

No person should be appointed who is not found suitable for the post for which

he had applied and also no person should be appointed who had not been able to secure

the minimum qualification mark. Andaman & Nicobar Administration v. Jolly George

(Smt)., 2001(1) SLR 538 Cal (DB).

(iii) When the post created for ad hoc appointment, itself stood abolished, the

holder of the post ceases to continue from the date of abolition of the post. Therefore no

enquiry is required to be conducted before termination on account of abolition of post.

Shri Maheshwari Senior Higher Secondary v. Bhikha Ram Sharma, 1996(8) SCC 22:

1996(2) JT 640: 1996(1) UJ 670: 1996(2) SLR 16(2): 1996 SCC(L&S) 815: 1996(73)

FLR 1011: 1996(5) SLR 368.

Though it is not for the Court to examine the wisdom of the executive with

regard to the retention or abolition of a post and substitute its decision for one of the

Government, even so, the order will come under judicial scrutiny if it appears that the

power has not been exercised bona fide, but for some collateral or oblique purpose. The

decision to abolish a post must not be a cloak or pretence to terminate the services of

the person holding the post. Abolition of a post which is not by way of penalty on the

holder thereof does not thus attract Article 311(2). Rabindra Nath Mukherjee v. S.R.

Dass, 1979(2) SLR 807.

(iv) It is essentially a matter for the Government to decide. It is not open to the

Court to go behind the wisdom of the decision and substitute its own opinion for that of

the Government. The decision to abolish the post should, however, be taken in good

faith and be not used as a cloak or pretence to terminate the services of a person holding


that post. On abolition of post the lien of permanent hand holding the ex-cadre post will

stand revived to his permanent post. State of Haryana v. Des Raj Sangar, AIR 1976 SC

1199: 1976(2) SCR 1034: 1976(2) SCC 844: 1976(1) SLR 191: 1976 SLJ 222: 1976

Lab IC 849.

In modern administration, it is necessary to recognise the existence of the

power with the Legislature or the Executive to create or abolish posts in the civil

service of the State. Any action legislative or executive taken pursuant to that power is

always subject to judicial review. The termination of service brought about by the

abolition of a post effected in good faith does not attract Article 311(2) of the

Constitution. K. Rajendran v. State of Tamil Nadu, AIR 1982 SC 1107: 1982(2) SCC

380: 1982 Cr LJ 1396: 1982 CrLR(SC) 555: 1982 SCC(Cr) 440: 1982 CAR 161: 1982

Lab IC 876: 1982(1) SLJ 604: 1982(2) SLR 196.

(v) Article 207 does not itself provide for the procedure for abolition of a

permanent post nor the mode of appointment to another post nor for the manner in

which the employee has to exercise the option. It only provides for the consequence of

a permanent post being abolished, the consequence being that the employee shall have

the option of accepting another appointment in which event he can count his previous

service for the purpose of calculating the qualifying period for pension. When there was

in fact no abolition of the Government posts under Article 207, there was no question of

the appellants exercising any option or surrendering their status under that Article at all.

The reliance by the High Court on Article 207 to decide the appellants status was, in the

circumstances wholly misplaced. Jawahar Lal Sazawal v. State of Jammu and Kashmir,

AIR 2002 SC 1187: 2002(2) SCR 66: 2002(3) SCC 219: 2002(2) LLJ 836: 2002(2) SLJ

284: 2002(2) SCJ 188: 2002(2) SLR 412.

21. Equation of Posts in New Department — When personnel drawn from

different sources are being absorbed and integrated in a new department, it is primarily

for the Government or the executive authority concerned to decide as a matter of policy

how the equation of posts should be effected. The Courts will not interfere with such a

decision unless it is shown to be arbitrary, unreasonable or unfair. R.S. Makoshi v. I.M.

Menon, AIR 1982 SC 101: 1982(2) SCR 69: 1982(1) SCC 379: 1982(1) LLN 235:

1981(3) SLR 280: 1982 SCC(Lab) 77: 1981(3) SLR 280 (SC).

It is the prerogative of the Government to create, reduce or abolish and to

provide cadre strength and procedure for appointed on encadred posts; whether they are

appointed on deputation from RAS, IAS or other source has been left to the

Government under the rules. The petitioners have no right to say that the rules should

be framed or constituted or modified or substituted to suit them for enhancing the

chances of promotion of in-service candidates nor the State Government can be

compelled to increase the cadred posts. Rajasthan Excise Service Association, Jaipur v.

Mani Ram Inania, 2002(3) SLR 517 Raj.

22. Abolition of Post and Compulsory Transfer to University — Institution

stood transferred to the University and posts which were in the department were

abolished, which were no longer available in the department. Employees were offered

employment in the University. Held, abolition of posts did have the effect of putting an

end to the status and this could not be done without complying the provisions of Article


311(2). Laiq Ram v. State of H.P., 1972 SLR 819; State of Himachal Pradesh v.

Director of Agriculture, 1973(1) SLR 1112.

23. Abolition of post and transfer of company— Even though the workers

may have interest in the manner in which the Company is conducting its business,

inasmuch as its policy decision may have an impact on the workers” rights, nevertheless

it is an incidence of service for an employee to accept a decision of the employer which

has been honestly taken and which is not contrary to law. Even a government servant,

having the protection of not only Articles 14 and 16 of the Constitution but also of

Article 311, has no absolute right to remain in service. For example, apart from cases of

disciplinary action, the services of government servants can be terminated if posts are

abolished. If such employee cannot make a grievance based on part III of the

Constitution or Article 311 then it cannot stand to reason that like the petitioner, non-

government employees working in a company which by reason of judicial

pronouncement may be regarded as a State for the purpose of part III of the

Constitution, can claim a superior or a better right than a government servant and

impugn it”s change of status. In taking of a policy decision in economic matters at

length, the principles of natural justice have no role to play. Even though the employees

of the company may have an interest in seeing as to how the company is managed, it

will not be possible to accept the contentions that in the process of disinvestment, the

principles of natural justice would be applicable and that the workers, or for that matter

any other party having an interest therein, would have a right of being heard. As a

matter of good governance and administration whenever such policy decisions are

taken, it is desirable that there should be wide range of consultations including

considering any representations which may have been filed, but there is no provision in

law which would require a hearing to be granted before taking a policy decision. In

exercise of executive powers, policy decisions have to be taken from time to time. It

will be impossible and impracticable to give a formal hearing to those who may be

affected whenever a policy decision is taken. BALCO Employees” Union (Regd.) v.

Union of India, 2001(10) JT 466: 2002(1) LLJ 550: 2002(1) SCJ 123: AIR 2002 SC

350: 2002(2) SCC 333.

24. Claim of Holder of Post — The providing of posts is discretionary with

the department concerned and if in the opinion of the department officials the post is no

more required, it can be abolished and the temporary holder of that post cannot claim

that the post should be continued for his sake. Om Prakash Khatri v. Union of India,

1969 SLR 504 (Punjab); Mohinder Singh v. Union of India, AIR 1969 Delhi 170; Gian

Chand Jain v. State of Haryana, 1968 SLR 752; Jagdish Prasad Tripathi v. State of

U.P., 1975 Lab IC 1000: 1975 SLJ (SN) 30 All.

When the post created for ad hoc appointment, itself stood abolished, the

holder of the post ceases to continue from the date of abolition of the post. Therefore no

enquiry is required to be conducted before termination on account of abolition of post.

Shri Maheshwari Senior Higher Secondary v. Bhikha Ram Sharma, 1996(8) SCC 22:

1996(2) JT 640: 1996(1) UJ 670: 1996(2) SLR 16(2): 1996 SCC(L&S) 815: 1996(73)

FLR 1011: 1996(5) SLR 368.


25. Services and Posts in Union Territory — The services and posts in a

Union Territory are services and posts in connection with the affairs of the Union.

Rules made by President under Article 309 are valid and operative. Jaichand v. Union

of India, 1969 SLR 386 Delhi (DB).

26. Appointment made against Gazetted Post without Gazetted Status — Petitioner”s appointment was made against the post of gazetted Asstt. Engineer but in

the order it was stated that though he will be considered as Asstt. Engineer but will not

have the Gazetted status. Held, petitioner cannot be denied of the benefits attached to

the post as Asstt. Engineer. He is entitled of all benefits attached to the said gazetted

post. Nirmal Chandra Sen v. State of West Bengal, 1973 SLJ 710: 1973(1) SLR 1097.

27. Promotion with Condition to Draw Emoluments of Lower Post —

Occupant of Class III post became occupant of Class II post without being entitled to

the emoluments claimable in respect of that post. Part of order by which direction was

given that petitioner should draw the emoluments of a lower post to be ignored as no

such condition could be imposed. R.N. Rajana v. State of Mysore, 1970 SLR 107

(Mysore).

28. General Central Service is a Residuary Central Service — General

Central Service is a “residuary” Central Service. Commissioner of Transport, H.P.

Govt. v. Narain Das, 1974(1) SLR 386: 1974 SLJ 621.

29. Service, Member of — A person cannot be deemed to be a member of

service unless he is permanently absorbed therein. State of Punjab v. Prem Prakash,

AIR 1957 Punjab 219; 1957 PLR 270; Laxminarayan v. Union of India, AIR 1956 Nag

113. Permanent service and temporary service are two well recognised and distinct

concepts; while a permanent servant has title to the post, a temporary servant has no

right to the post. Dr. Binoy Kumar Das v. State of Orissa, 1974 SLJ 222: 1974(1) SLR

320.

R.8-9] APPOINTING AUTHORITY 57

PART III

APPOINTING AUTHORITY R.8-9

8. Appointment to (Class I) Group A Services and Posts — All

appointments to Central Civil Service (Class I) Group A and Central

Civil Posts (Class I) Group A, shall be made by the President:

Provided that the President may, by a general or a special order and

subject to such conditions as he may specify in such order, delegate to

any other authority the power to make such appointments.

9. Appointment to other Services and Posts — (1) All

appointments to the Central Civil Services (other than the General Civil

Service) Group B, Group C and Group D, shall be made by the

authorities specified in this behalf in the Schedule:

Provided that in respect of Group C and Group D civilian services,

or civilian posts in the Defence Services appointments may be made by

officers empowered in this behalf by the aforesaid authorities.

(2) All appointments to Central Civil Posts, Group B, Group C and

Group D, included in the General Central Service shall be made by the

authorities specified in that behalf by a general or special order of the

President, or, where no such order has been made, by the authorities

specified in this behalf in the Schedule.

COMMENTARY

S Y N O P S I S

1. Appointing authority, definition of .. ................................................................................ 60

2. Appointing authority, powers of ...................................................................................... 60

3. Appointing authority, delegation of its powers of dismissal

or removal ........................................................................................................................ 60

4. Appointing authority when becomes defunct ................................................................... 60

5. President has delegated his powers of appointment in certain

territories ......................................................................................................................... 60

6. Appointment or employment............................................................................................ 61

7. Appointment and recruitment ........................................................................................... 61

8. Appointment, rules for ..................................................................................................... 61


9. Appointment of persons under Supreme Court and Comptroller

and Auditor-General of India ........................................................................................... 62

10. Appointment under High Court ....................................................................................... 62

11. Appointments of Officers and servants of a High Court ................................................. 64

12. “Control” of High Court……………………………………………………………. ....... 64

13. Powers and role of the High Court …………………………………. .............................. 64

14. Disciplinary powers of High Court ................................................................................. 65

15. Administrative and disciplinary control of High Courts................................................... 65

16. Delegation of disciplinary power over subordinate judiciary .......................................... 66

17. Consultation with High Court ......................................................................................... 67

18. Appointment or promotion to the cadre of District Judges ............................................... 67

19. Appointments to Higher Judicial Service, qualifications for ............................................ 69

20. Appointment or dismissal or removal of persons in Judicial

Service is an executive function of Governor ................................................................... 69

21. Removal of judicial officer from service by High Court ................................................. 70

22. Appointment of Public Prosecutor, Government Pleaders and Law Officers ................... 70

23. Articles 14, 15 and 16 form part of constitutional guarantee of equality.......................... 70

24. Equal opportunity in matters relating to employment or appointment ............................. 73

25. Reservation and Equality ................................................................................................. 73

26. Temporary or permanent employees, equality of opportunity .......................................... 74

27. Equality of treatment ........................................................................................................ 74

28. Appointment by advertisement ........................................................................................ 74

29. Appointment, qualifications for ...................................................................................... 74

30. Relaxing or altering qualifications ................................................................................... 75

31. No legal duty to fill up all vacancies advertised ............................................................... 76

32. No legal duty to fill up vacancies and not allow vacancies to be accumulated ................ 76

33. Mere selection would not give right to claim appointment .............................................. 76

34. Recruitment by open competition .................................................................................... 77

35. Appointment of any one who is more suitable ................................................................. 78

36. Recruitment ratio .............................................................................................................. 78

37. Backward class, meaning of ............................................................................................ 78

38. Reservation of posts for Backward Classes ...................................................................... 78

39. Scheduled Castes and Scheduled Tribes, meaning of ....................................................... 79

40. Reservation of posts for Scheduled Castes and Scheduled Tribes .................................... 79

41. Reservation carry forward and roster ............................................................................... 81

42. Reservation of posts in Higher Services ........................................................................... 82

43. Reservation at the level of super specialisation ................................................................ 83


44. Reservation for Scheduled Castes and Scheduled Tribes, standard in qualifying

examination ...................................................................................................................... 83

45. Reservation of vacancies for ex-servicemen .................................................................... 83

46. Reservation of seat or posts for women............................................................................ 84

47. Reservation in Judiciary ................................................................................................... 84

48. Basis of classification for discrimination not to be arbitrary ........................................... 85

49. Reasonable classification ................................................................................................. 85

50. Reservation for children of bank employees .................................................................... 86

51. Appointment, infraction of rules ...................................................................................... 86

52. Appointment without rules ............................................................................................... 86

53. Appointment in violation of select list ............................................................................. 86

54. Appointment for political objects ..................................................................................... 87

55. Whole thing completed in haste in one day in absence of

Secretary ......................................................................................................................... 87

56. Consideration of extraneous matters ................................................................................ 87

57. Membership of political party in power no disqualification for appointment .................. 87

58. Political convictions or affiliations no bar for public

employment ..................................................................................................................... 87

59. Termination on Police report ............................................................................................ 88

60. Citizen be heard before he is debarred from appointment ............................................... 88

61. Ad-hoc appointment, what it is ........................................................................................ 88

62. Ad-hoc appointment, when can be made ......................................................................... 88

63. Ad-hoc appointment/promotion, All eligible persons be considered................................ 89

64. Ad-hoc appointment, does not vest right to hold post ...................................................... 90

65. Ad-hoc appointment, does not confer any right to claim such post or seniority on that

account ............................................................................................................................ 90

66. Ad-hoc appointment, place of promotees ......................................................................... 90

67. Ad-hoc appointment or promotion ................................................................................... 90

68. Ad-hoc appointment, ad-hocist has no right either of seniority or otherwise on the post . 92

69. Officiating and substantive, meaning of ........................................................................... 92

70. Appointment - Part time ................................................................................................... 93

71. Appointment, excluded post ............................................................................................. 93

72. Appointment, void............................................................................................................ 93

73. Appointment until further orders ...................................................................................... 93

74. Substantive appointment to a permanent post .................................................................. 93

75. Permanent appointment and appointment on probation distinction between.................... 94

76. Post likely to continue ...................................................................................................... 94

77. Officiating or temporary, difference in ............................................................................ 94


78. Temporary or regular ....................................................................................................... 94

79. Temporary substantive appointee does not become permanent if post

declaredpermanent ........................................................................................................... 94

80. Temporary post can be held substantively ....................................................................... 94

81. Disqualification on ground of sex .................................................................................... 95

82. Age-limit for appointment to a post ................................................................................. 95

83. Appointment without consultation with Public Service Commission not invalid ............ 96

84. Appointment, effect of approval by Public Service Commission ..................................... 96

85. Appointment by authority not competent to make appointment ....................................... 96

86. Appointment by higher authority ..................................................................................... 96

87. Appointment on probation or on officiating basis is terminable ...................................... 97

88. Date of appointment ......................................................................................................... 97

89. Appointment with a back date .......................................................................................... 97

90. Person not eligible for consideration for appointment cannot question appointment ....... 97

91. Creation of post to accommodate a person ....................................................................... 97

92. Suitability for appointment ............................................................................................... 98

93. Oral interview test ............................................................................................................ 98

94. Verification of character and antecedents of persons selected for appointment to public

posts ................................................................................................................................. 98

95. Opportunity of hearing before cancellation of appointment ............................................. 99

96. Public Employment (Requirements as to Residence) Act, 1957, Section 3 ultra vires ..... 99

97. Forwarding of application to Service Commission ........................................................ 100

98. Transfer from one department to another ....................................................................... 100

99. Provisions of Rule 9(2) are not repugnant to the definition of appointing authority in

Rule 2(a) ......................................................................................................................... 100

1. Appointing Authority, Definition of — See Rule 2(a).

2. Appointing Authority, Powers of — See Commentary under Rule 2,

Synopsis 1.

3. Appointing Authority, Delegation of its Powers of Dismissal or Removal

— See Commentary under Rule 2, Synopsis.

4. Appointing Authority When Becomes Defunct — See Commentary under

Rule 2, Synopsis 4.

5. President has Delegated his Powers of Appointment in Certain Territories — Under the proviso to Rule 8, the President his delegated his powers of


all appointments in respect of Central Civil Services and posts Class I, under the

following administrations:—.

— Arunachal Pradesh - To the Administrator of Arunachal Pradesh.

— Dadra and Nagar Haveli - To the Administrator of Dadra & Nagar Haveli.

— Delhi - To the Lieutenant Governor of Delhi.

— Goa, Daman & Diu - To the Administrator of Goa, Daman & Diu.

— Mizoram - To the Administrator of Mizoram.

Provided that no appointment to the post of Chief Secretary or Finance

Secretary or Inspector-General of Police or Development Commissioner of any other

post which carries an ultimate salary of Rupees Two Thousand per mensem or more

shall be made except with the previous approval of the Central Government.

6. Appointment or Employment — “Appointment” and “employment”

connote two different conceptions. The word “employment” covers a much larger field

in matter of conditions of service, the right to promotion, etc. then the word

“appointment”. S.K. Das Gupta v. O.N.G.C., AIR 1970 Guj 149; General Manager, S.

Rly v. Rangachari, 1961(2) SCJ 424: AIR 1962 SC 36: 1962(2) SCR 586: 1970(2) LLJ

289; Lalit Mohan Deb v. Union of India, 1969 Lab IC 1580; M.G. Sharan v. State of

Bihar, AIR 1970 Patna 25.

7. Appointment and Recruitment — (i) The term “recruitment” and

“appointment” are not synonymous and connote different meaning. Basant Lal

Malhotra v. State of Punjab, AIR 1969 Pun 178: 1968 SLR 883; Gurdev Singh Gill v.

State of Punjab, 1968 SLR 538.

(ii) The concept of recruitment is quite different from the concept of

appointment. Man Mohan Kaushib v. State of Rajasthan, 1971 Lab IC 338: AIR 1971

Raj 60: 1971(2) SLR 88.

8. Appointment, Rules for — Government has the power of making

appointments. Rules are framed by the Government for regulating the manner in which

such appointments are to be made. The Government is not bound to frame the rules.

Failure of the Government to frame rules does not take away the power of the

Government to make appointments. Maria T.S. da P. Moraise Almeida v. Union of

India, 1982(1) SLJ 136. See also Nelam Kandam Bhaskaran v. Union of India, 1988(4)

SLR 783 (CAT Delhi); Bal Krishan Sharma v. H.P. University, 1998(1) SLR 287

HP (DB).

Appointments to any public post must be absolutely transparent and fair and

must be in accordance with the prescribed procedure. This is the reason why this Court

has been indicating that even ad-hoc appointments should not be encouraged as far as

possible and should be adhered to only when public exigencies require and appointment

in accordance with the prescribed procedure would take a fairly long time and non-

filling up of the posts would be against the public interest. Dilip Kumar Tripathy v.

State of Orissa, AIR 1997 SC 440: 1996(10) SCC 373: 1996(3) SCJ 239: 1996(3) SLJ

112: 1996(5) SLR 640: 1997(75) FLR 306.




statute or statutory rules. Therefore the amendment in the rules affect not only the

persons who join service after amendment of Rules but all the persons in service at the

time of amendment. Government of Andhra Pradesh v. Syed Yousuddin Ahmed, AIR

1997 SC 3439:1997(7) SCC 24: 1997(7) JT 395: 1997(5) SLR 219: 1998(1) SLJ 91:

1997 Lab IC 3361.

9. Appointment of Persons under Supreme Court and Comptroller and Auditor-General of India — Articles 146 and 148(5)(6) of the Constitution which deal

with the officers and service of persons under the Supreme Court and Comptroller and

Auditor-General of India provide as under:—.

Article 146. Officers and servants and the expenses of the Supreme Court —

(1) Appointments of officers and servants of the Supreme Court shall be made by the

Chief Justice of India or such other Judge or Officer of the Court as he may direct:.

Provided that the President may by rule require that in such cases as may be

specified in the rule, no person not already attached to the Court shall be appointed to

any office connected with the Court, save after consultation with the Union Public

Service Commission.

(2) Subject to the provisions of any law made by Parliament, the conditions of

service of officers and servants of the Supreme Court shall be such as may be

prescribed by rules made by the Chief Justice of India or by some other Judge or officer

of the Court authorised by the Chief Justice of India to make rules for the purpose:.

Provided that the rules made under this clause shall, so far as they relate to

salaries, allowances, leave or pensions, require the approval of the President.

(3) The administrative expenses of the Supreme Court, including all salaries,

allowances and pensions payable to or in respect of the officers and servants of the

Court, shall be charged upon the Consolidated Fund of India, and any fees or other

monies taken by the Court shall form part of that Fund.

Article 148. Comptroller and Auditor-General of India — (5) Subject to the

provisions of this Constitution and of any law made Parliament, the conditions of

service of persons serving in the Indian Audit and Accounts Department and the

administrative powers of the Comptroller and Auditor-General shall be such as may be

prescribed by rules made by the President after consultation with the Comptroller and

Auditor-General.

(6) The administrative expenses of the office of the Comptroller and Auditor-

General, including al salaries, allowances and pensions payable to or in respect of

persons serving in that office, shall be charged upon the Consolidated Fund of India.

10. Appointment under High Court — Articles 229, 233, 234 and 235 which

provide for the appointments of officers and servants of a High Court, the district

judges, the persons other than district judges to the judicial service and control over

subordinate courts are:—


Article 229. Officers and servants and the expenses of High Courts — (1)

Appointments of officers and servants of a High Court shall be made by the Chief

Justice of the Court or such other judge or officer of the court as he may direct:.

Provided that the Governor of the State may by rule require that in such cases

as may be specified in the rule no person not already attached to the Court shall be

appointed to any office connected with the Court save after consultation with the State

Public Service Commission.

(2) Subject to the provisions of any law made by the Legislature of the State,

the conditions of service of officers and servants of a High Court shall be such as may

be prescribed by rules made by the Chief Justice of the Court or by some other Judge or

officer of the Court authorised by the Chief Justice to make rules for the purpose;

Provided that the rules made under this clause shall, so far as they relate to

salaries, allowances, leave or pensions, require the approval of the Governor of

the State.

(3) The administrative expenses of a High Court, including all salaries,

allowances and pensions payable to or in respect of the officers and servants of the

Court, shall be charged upon the Consolidated Fund of the State, and any fees or other

monies taken by the Court shall form part of that Fund.

Subordinate Courts

Article 233. Appointment of District Judges — (1) Appointments of persons to

be, and the posting and promotion of, District Judges in any State shall be made by the

Governor of the State in consultation with the High Court exercising jurisdiction in

relation to such State.

(2) A person not already in the service of the Union or of the State shall only

be eligible to be appointed a District Judge if he has been for not less than seven years

an advocate or a pleader and is recommended by the High Court for appointment.

Article 234. Recruitment of persons other than District Judges to the Judicial

Service — Appointments of persons other than District Judges to the judicial service of

a State shall be made by the Governor of the State in accordance with rules made by

him in that behalf after consultation with the State Public Service Commission and with

the High Court exercising jurisdiction in relation to such State.

Article 235. Control over subordinate Courts — The control over district

courts and courts subordinate thereto including the posting and promotion of, and the

grant of leave to, persons belonging to the judicial service of a State and holding any

post inferior to the post of district judge shall be vested in the High Court, but nothing

in this Article shall be construed as taking away from any such person any right of

appeal which he may have under the law regulating the conditions of his service or as

authorising the High Court to deal with him otherwise than in accordance with the

conditions of his service prescribed under such law.


It is now settled beyond dispute that control envisaged in Article 235 includes

both disciplinary as also judicial — Rohas Behari Rajguru v. State of Orissa, 1981(3)

SLR 78.

Scope of Article 235 based on decisions of Supreme Court has been

summarised in P. Kumara Menon v. State of Kerala, 1982(1) SLR 104: 1982(1) SLJ 91.

11. Appointments of Officers and Servants of a High Court — The

unequivocal purpose and obvious intention of the framers of Constitution in enacting

Article 229 is that in the matter of appointments of officers and servants of a High

Court it is the Chief Justice or his nominee who is to be supreme authority and there

can be no interference by the executive except to the limited extent that is provided in

the Article. M. Gurumorrthy v. Accountant-General, Assam, 1971(1) SCWR 817: AIR

1971 SC 1850: 1971 Supp SCR 420: 1971(2) SCC 137: 1971(2) SLR 434. See also

Subhash Sharma v. Union of India, AIR 1990 SC 631: 1990(2) Supp SCR 433: 1991(1)

SCC Supp 573: 1990(4) JT 245: 1990(6) SLR (SC) 36.

12. “Control” of High Court — The word “control” used in Article 235 read

with Articles 233 and 234 would indicate that although the Appointing Authority of the

District Judge and officers other than District Judges is the Governor of the State, the

words “control over district courts and courts subordinate thereto”, which are words of

wide connotation, vest in the High Court other facets of service of those officers,

namely, their confirmation on completion of the period of probation, their postings,

transfers and disciplinary matters including power to recommend major punishments.

Thus, the “control” vested in the High Court is complete control subject only to the

powers of the Governor in the matter of appointment, initial posting and promotion to

the posts of District Judges. For imposing major punishment, including the punishment

of dismissal, removal or reduction in rank, the High Court can, in exercise of its powers

under Article 235 of the Constitution, hold disciplinary proceedings and recommend the

punishment to be imposed on the delinquent to the Governor who alone would be

competent to impose such punishment having regard to the provisions of Articles 233

and 234. Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC

739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174:

2000(1) LLN 39.

13. Powers and role of the High Court — The Indian Constitution provides

for an independent judiciary in every State by making a provisions for a High Court

being constituted for each State. The constitution has conferred very wide powers and

extensive jurisdiction on each High Court, including the power of superintendence over

all the courts and tribunals in the territory over which it has jurisdiction. Undoubtedly,

one of the most important wings of the judiciary comprises of the subordinate courts as

it is in these courts that the judiciary comes in close contact with the people. In order to

secure the independence of the subordinate judiciary from the Executive, Articles 233

to 237 have been placed in the Constitution. Article 233 deals with the appointment of

District Judges and provides that appointments, posting and promotions of District

Judges in any State shall be made by the Governor in consultation with the High Court,

exercising jurisdiction in relation to such State. The word “District Judge” has been

defined in Article 236(a). The expression “judicial service” has been defined in clause


(b) of Article 236. Article 237 gives power to the Governor to apply, by public

Notification, the provisions of this Chapter and the Rules made there under to any class

or classes of Magistrates. Once such a Notification is issued, the provisions of Articles

234, 235 and 236 will become applicable to those magistrates and they would become

members of the “judicial service” under the control of the High Court. In order to

ensure their independence, the control over the subordinate courts has been vested in

the High Court under Article 235. From the scheme of the Constitution, it will be seen

that though the officers of subordinate judiciary are basically and essentially

Government Servants, their whole service is placed under the control of the High Court

and the Governor cannot make any appointment or take any disciplinary action

including action for removal or compulsory retirement unless the High Court is

“CONSULTED” as required by the constitutional impact of both the Articles 233 and

234 and the “control” of the High Court indicated in Article 235. Madan Mohan

Choudhary v. State of Bihar, AIR 1999 SC 1018: 1999(3) SCC 396: 1999(1) SLR 718:

1999(2) LLJ 229: 1999(1) SCJ 449: 1999(2) LLN 4: 1999(81) FLR 712: 2000(1) SLJ

87.

14. Disciplinary powers of High Court — The High Court are vested with the

disciplinary control as well as administrative control over the Members of the Judicial

Service exclusively, but that does not mean that they can also pass orders of dismissal,

removal, reduction in rank or termination from service while exercising administrative

and disciplinary control over the Members of Judicial Service. Undoubtedly, the High

Courts alone are entitled to initiate, to hold enquiry and to take a decision in respect of

dismissal, removal, reduction in rank or termination from service, but the formal order

to give effect to such a decision has to be passed only by the State Governor on the

recommendation of the High Court. It is well settled again by a catena of decisions of

Supreme Court that the recommendation of the High Court is binding on the State

Government/Governor. Therefore while the High Court retains the power of

disciplinary control over the subordinate judiciary, including the power to initiate

disciplinary proceedings, suspend them pending enquiries and impose punishment on

them but when it comes to the question of dismissal, removal, reduction in rank or

termination of the services of the judicial officer, on any count whatsoever, the High

Court becomes only the recommending authority and cannot itself pass such an order.

Registrar (Administration), High Court of Orissa v. Sisir Kanta Satapathy, AIR 1999

SC 3265: 1999(7) SCC 725: 1999 Lab IC 3243: 1999(4) LLN 1202: 1999(83) FLR 427:

2000(96) FJR 363: 1999(5) SLR 191: 2000(1) SLJ 226 relying upon Shyam Lal v. State

of U.P., (1955) 1 SCR 26 and High Court of Judicature for Rajasthan v. Ramesh Chand

Paliwal , (1998) 3 SCC 72; Therefore an order terminating the service of a judicial

officer should be treated as a recommendation to Governor. T. Lakshmi Narsimha Chari

v. High Court of A.P., 1996 (5) SCC 90.

15. Administrative and disciplinary control of High Courts — It is needed

that periodical inspections of subordinate courts to be carried out regularly. The well-

recognised and accepted practice of making annual entries in the confidential records of

subordinate officials by superiors has a public policy and purposive requirement. It is

one of the recognised and time-tested modes of exercising administrative and

disciplinary control by a superior authority over its subordinates. They very power to


make such entries as have potential for shaping the future career of a subordinate

officer casts an obligation on the High Courts to keep a watch and vigil over the

performance of the members of subordinate judiciary. An assessment of quality and

quantity of performance and progress of the judicial officers should be an ongoing

process continued round the year and then to make a record in an objective manner of

the impressions formulated by such assessment. An annual entry is not an instrument to

be wielded like a teachers cane or to be cracked like a whip. The High Court has to act

and guide the subordinate officers like a guardian or elder in the judicial family. The

entry in the confidential rolls should not be reflection of personal whims, fancies or

prejudices, likes or dislikes of a superior. The entry must reflect the result of an

objective assessment coupled with an effort at guiding the judicial officer to secure an

improvement in his performance where need be; to admonish him with the object of

removing for future, the shortcoming found; and expressing an appreciation with an

idea of toning up and maintaining the imitable qualities by affectionately patting on the

back of meritorious and deserving. An entry consisting of a few words, or a sentence or

two, is supposed to reflect the sum total of the impressions formulated by the inspecting

judge who had the opportunity of forming those impressions in his mind by having an

opportunity of watching the judicial officer round the period under review. In the very

nature of things, the process is complex and the formulation of impressions is a result

of multiple factors simultaneously playing in the mind. The perceptions may differ. In

the very nature of things there is a difficulty nearing an impossibility in subjecting the

entries in confidential rolls to judicial review. Entries either way have serious

implications on the service career. Hence the need for fairness, justness and objectivity

in performing the inspections and making the entries in the confidential rolls. Rules -

where they are, else the executive instructions, require that entries in confidential

records are made within a specified time soon following the end of the period under

review, generally within three months from the end of the year. Delay in carrying out

inspections or making entries frustrates the very purpose sought to be achieved. The

mental impressions may fade away or get embellished, not to be restored. Events of

succeeding year may cast their shadow on assessment of previous years. Recording of

entries for more than one period in one go must be avoided as it is pregnant with the

risk of causing such harm as may never be remedied or granting undeserved benefits.

Thus the need of vigilantly carrying out the annual inspections at regular intervals and

making timely entries in the service records followed by prompt communications to the

judicial officers so as to afford them a right of representation in the event of the entry

being adverse, emphasised. Bishwanath Prasad Singh v. State of Bihar, 2001(2) SCC

305: 2001(1) SLT 183: 2001(1) SCJ 343.

16. Delegation of disciplinary power over subordinate judiciary — The

control of the subordinate judiciary under Article 235 is vested in the High Court. After

the appointment of the judicial officers by the Governor, the power to transfer, maintain

discipline and keep control over them vests in the High Court. The Chief Justice of the

High Court is first among the judges of the High Court. The action taken is by the High

Court and not by the Chief Justice in his individual capacity, nor by the Committee of

Judges. For the convenient transaction of administrative business in the Court, the Full

Court of the Judges of the High Court generally passes a resolution authorising the

Chief Justice to constitute various committees including the committee to deal with


disciplinary matters pertaining to the subordinate judiciary or the ministerial staff

working therein. Article 235, therefore, relates to the power of taking a decision by the

High Court against a member of the subordinate judiciary. Such a decision either to

hold enquiry into conduct of a judicial officer, subordinate or higher judiciary, or to

have the enquiry conducted through a District or Additional District Judge etc. and to

consider the report of the Enquiry Officer for taking further action is of the High Court.

Equally, the decision to consider the report of the enquiry officer and to take follow up

action and to make appropriate recommendation to the Disciplinary Committee or to the

Governor, is entirely of the High Court which acts through the Committee of the Judges

authorised by the Full Court. Once a resolution is passed by the Full Court of the High

Court, there is no further necessity to refer the matter again to the Full Court while

taking such procedural steps relating to control of the subordinate judiciary. High Court

of Judicature at Bombay v. Shirishkumar Rangrao Patil, AIR 1997 SC 2631: 1997(6)

SCC 339: 1997(2) LLN 470: 1997(76) FLR 659: 1997(2) SCJ 320: 1997(2) UJ 152:

1997(4) SLR 321.

17. Consultation with High Court — The word “consult” in its ordinary

meaning means “to ask advice” or “to take counsel”. The Governor is thus a “consulter”

and the High Court is the “consultee” which is treated as an expert body in all matters

of service including appointments, disciplinary action, compulsory retirement etc.

relating to State Judicial Services. Since the Governor cannot act on his own unless he

has consulted the High Court, the Constitution has conferred upon the High Court a

sacred and noble duty to give the best of advice or opinion to the Governor; an advice

tendered after due deliberation and after taking into consideration all the relevant

material and record relating to the problem on which consultation is made or advice is

sought by the Governor. It is, therefore, essentially a matter of trust and confidence

between the Governor and the High Court. The High Court cannot act arbitrarily in

giving its opinion to the Governor or else it will be a betrayal of that trust. If the advice

is not supportable by any material on record and is arbitrary in character it may not

have any binding value. Madan Mohan Choudhary v. State of Bihar, AIR 1999 SC

1018: 1999(3) SCC 396: 1999(1) SLR 718: 1999(2) LLJ 229: 1999(1) SCJ 449: 1999(2)

LLN 4: 1999(81) FLR 712: 2000(1) SLJ 87.

18. Appointment or Promotion to the Cadre of District Judges — (i) No

doubt, the appointment of a person to be a District Judge vests with the Governor, but

he cannot make the appointment on his own initiative and must do so in consultation

with the High Court. So far as promotion to the cadre of District Judge is concerned, the

High Court is best fitted to adjudge the claims and merits of persons to be considered

for promotion. Chandramouleshwar Prasad v. Patna High Court, 1971(1) SCJ 7:

1969(II) SCWR 667: AIR 1970 SC 370: 1970(2) SCR 666: 1969(3) SCC 56: 1970 SLR

(SC) 825; Madan Mohan Prasad v. Govt. of Bihar, AIR 1970 Patna 432: 1971(1) SLR

665 (FB); Hari Dutt Kainthia v. State of H.P., AIR 1980 SC 1426: 1980(3) SCC 189:

1980 Lab IC 825: 1980 SLJ 646: 1980(2) SLR 154; M.M. Gupta v. State of J&K, AIR

1982 SC 1579: 1984(1) SCC 593: 1982(3) SCC 412: 1982 Lab IC 1970: 1983(1) SLR

160: 1983(1) SLJ 82.


(ii) A candidate for direct recruitment from the bar does not become eligible for

appointment as District Judge without the recommendations of the High Court. [Article

233(2) of the Constitution].

(iii) In A. Pandurangam Rao v. State of A.P., AIR 1975 SC 1922: 1976(1) SCR

620: 1975(4) SCC 709: 1975 Lab IC 1452: 1975(2) SLR 582: 1976 SLJ 3, it was held

that Government was not bound to accept all the recommendations but could tell the

High Court its reasons for not accepting the High Court”s recommendations in regard to

certain persons. Even if the High Court did not agree, the final authority was the

Government in the matter of appointment and for good reasons it could reject the High

Court”s recommendations. In Mani Subrat Jain v. State of Haryana, 1977(1) SCJ 455:

AIR 1977 SC 876: 1977(2) SCR 626: 1977(2) SCC 148: 1977 Lab IC 533: 1977 SLJ

144: 1977(1) SLR 272, it has been held that if the names are recommended by High

Court, it is not obligatory on the Governor to accept the recommendations.

(iv) District Judge includes Additional District Judge and Additional

Sessions Judge — Under Article 233 appointment as well as promotion of persons to

be District Judge is a matter for the Governor in consultation with the High Court and

the expression “District Judge” include an additional District Judge and an additional

Sessions Judge. District Judges may be directly appointed or may be promoted from the

subordinate ranks of the judiciary. The Article is intended to take care of both. State of

Assam v. Kuseswar Saikia, 1970(1) SCWR 275: AIR 1970 SC 1616: 1970(2) SCR 928:

1969(3) SCC 505: 1970 Lab IC 1336: 1969 SLR 883; see also Chandra Mohan v. State

of U.P., 1967(2) SCJ 717: 1967(1) SCWR 153: AIR 1966 SC 1987: 1967(1) SCR 77:

1967(1) LLJ 412; Prem Nath v. State of Rajasthan, 1967(II) SCWR 543: AIR 1967 SC

1599: 1967(2) SCR 186: 1967 CrLJ 1569: 1967 SLR 872.

(v) Appointment to the post of District Judge must be made by selection of the

most meritorious officer upon an appraisal of the comparative merit of eligible

Subordinate Judge. The principle of seniority-cum-fitness would be a valid principle.

Hari Datta Kainthala v. State of H.P., 1974 SLJ 525: 1974(1) SLR 208 (SC) (FB).

Supreme Court on appeal in above case held that if there was no rule and the High

Court proceeded to adopt merit-cum-seniority or seniority-cum-fitness as a criterion for

recommending promotions from the subordinate judges to the post of District Judge,

neither of which appears to violate either Article 233 or Article 16 or any other

constitutional mandate or the statutory rule, it would be futile to proceed to examine

what ought to be or possible criterion should really govern the decision for

recommending persons from subordinate judicial service for promotion to the District

Judge. Hari Datta Kainthala v. State of H.P., 1974 SLJ 525: 1974(1) SLR 208

(SC) (FB).

(vi) Promotee Officer: Reversion — Under Article 235 of the Constitution,

the High Court is competent to revert a person promoted on officiating basis as District

Judge by the State Government, to his substantive post of Additional District &

Sessions Judge. Mahendra Prasad Sinha v. High Court, Patna, 1983(1) SLR 778 Pat.

(vii) Appointment of Full Court — In the Kerala High Court, a Committee of

senior most three Judges was constituted to prepare a list of suitable persons. Opinion

of the Committee was placed before the Full Court and there was joint deliberation by


the Full Court. It was held that there was no abdication by the Full Court. Mary Teresa

Dias v. Chief Justice, 1986(1) SLR 380 Ker (DB).

(viii) High Court”s Recommendation — It is only the High Court which can

make a recommendation whether a particular officer of the Judiciary is competent and

fit to be promoted as Judge, City Civil Court. If the State Government rejects the

recommendation without mature deliberation, article 233 and 235 of the constitution are

attracted. N.J Mankad v. State, 1985(2) SLR 306 Guj.

(ix) Member of High Court Staff — Article 233(2) of the Constitution lays

down qualifications for appointment as District Judges. The candidates must be

practising advocates. A member of the High Court staff is not eligible for the post. S.G.

Deshpande v. State of Maharashtra, 1985(3) SLR 264 Bom.

(x) Promotion of Subordinate Judges — For promoting Subordinate Judges

to the post of District and Sessions Judge, Grade II rules were silent as to the method to

be adopted. The High Court adopted the criterion of the seniority-cum-fitness. It was

held that this was proper. T.H.B. Chalapathi v. High Court, A.P., 1986(2) SLR 218,

227, 228 para 11 ( AP) (DB)

19. Appointments to Higher Judicial Service, Qualifications for — Article

233(2) laid down only the minimum qualifications and it was open to the rule making

authority to prescribe more stringent qualifications for the recruitment of the persons to

the Higher Judicial Service only. Daulat Raj Singhvi v. State of Rajasthan, 1970 Raj

LW 214; Pandurang Rao v. Andhra Pradesh Public Service Commission, AIR 1963 SC

268: 1963(1) SCR 707; Muni Lal Garg v. State of Rajasthan, AIR 1970 Raj 164.

See also Surinder Mohan Sharma v. State of Haryana, 1988(5) SLR 94 P&H;

S.N. Singh v. High Court, Allahabad, 1985(2) SLR 819 (SC): 1984(2) SCJ 287; Orissa

Judicial Services Association v. State of Orissa, AIR 1990 SC 726: 1990(3) Supp SCR

348: 1992(1) SCC 187: 1990(4) JT 726: 1991(2) ATR 684: 1992(19) ATC 229: 1991(1)

SLR 542: 1991 Lab IC 522; High Court of Judicature at Allahabad v. Amod Kumar

Srivastava, 1993(3) SLR 308 All (FB); K.Arumgam v. State of Tamil Nadu, 1998(1)

SLR 260 Mad (DB).

20. Appointment or Dismissal or Removal of Persons in Judicial Service is an Executive Function of Governor — Appointment or dismissal or removal of

persons belonging to the Judicial Service of the State is not a personal functions but is

an executive function of the Governor exercised in accordance with the rules in that

behalf under the Constitution. Shamsher Singh v. State of Punjab, 1974(2) SLR 701:

AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831. It will be in the best interest

of a high and healthy tradition for the Governor to ordinarily accept the

recommendations of a High Court in a disciplinary matter concerning judicial officers

Baldev Raj Guliani v. P&H High Court, 1976 SLJ 601: 1976(2) SLR 758: AIR 1976 SC

2490: 1977(1) SCR 524: 1976(4) SCC 201; State of Haryana v. Inder Prakash, AIR

1976 SC 1841: 1976 Supp SCR 603: 1976(2) SCC 977: 1976(2) SLR 223: 1976 SLJ

497; Chief Justice, A.P., High Court v. L.V.A. Dikshitulu, AIR 1979 SC 193: 1979(2)

SCC 34: 1979(1) SLR 1; P. Kumara Menon v. State of Kerala 1982(1) SLR 104:

1982(1) SLJ 91.


See also State of U.P. v. Rafiquiddin, 1988(1) SCR 794: AIR 1988 SC 162:

1987 Supp SCC 401: 1987(4) JT 251: 1988(1) SLR 491: 1988 Lab IC 344: 1987(5)

ATC 257: 1988 SCC (Lab) 183: 1988(2) SCJ 170.

21. Removal of judicial officer from service by High Court— Order of

removal passed by the High Court itself and not in the name of Governor. Held that

though the recommendation of the High Court for removal from service is binding on

the Governor, the High Court cannot by itself pass the order of removal from service. T.

Lakshmi Narasimha Chari v. High Court of Andhra Pradesh, AIR 1996 SC 2067:

1996(5) SCC 90: 1996(73) FLR 1618: 1996(2) UJ 300: 1996 SCC(L&S) 1133: 1996(2)

SCJ 524: 1996(2) SLJ 40: 1996(4) SLR 1: 1996(2) LLN 479.

22. Appointment of Public Prosecutors, Government Pleaders and Law Officers — (i) The appointment of Public Prosecutor is an executive or administrative

act of the Government but if it contravenes the law, Courts can intervene. The

appointment has to be made in accordance with the rule and the procedure prescribed.

A. Mohambaram v. M.A. Jayavelu, AIR 1970 Mad 63.

(ii) Appointment by selection or by a process otherwise than calling for

applications does not necessarily offend Article 16. Baby George v. State of Kerala,

1974 SLJ 548; Sudhansu Sekhar Misra v. State, 1976(1) SLR 477: 1976 Lab IC 821.

(iii) The making of an application by an Advocate for appointment of Law

Officers whether in response to an advertisement or notice or otherwise would amount

to soliciting work and would be highly unprofessional and unethical. Any advocate who

applies for appointment would be committing professional misconduct. State of U.P. v.

Bholanath Srivastava, 1972 SLR 477: 1972 ALJ 457.

23. Articles 14, 15 and 16 Form a Part of Constitutional Guarantee of

Equality in Matters Relating to Employment or Appointment under the State — Article 14, 15 and 16 of the Constitution provide:—.

Article 14. Equality before law — The State shall not deny to any person

equality before the law or the equal protection of the laws within the territory of India.

Article 15. Prohibition of discrimination on Grounds of Religion, Race, Caste,

Sex or Place of Birth. — (1) The State shall not discriminate against any citizen on

ground only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race caste, sex, place of birth

or any of them, be subject to any disability, liability restrictions or condition with

regard to—.

(a) access to shops, public restaurants, hotels and places of public

entertainment; or.

(b) the use of wells, tanks, bathing ghats, roads and places of public resort

maintained wholly or partly out of State funds or dedicated to the use of general public.

(3) Nothing in this Article shall prevent the State from making any special

provision for women and children.


(4) Nothing in this Article or in Clause (2) of Article 29 shall prevent the State

from making any special provisions for the advancement of any socially and

educationally backward classes of citizens or for the Schedule Castes and the Scheduled

Tribes].

Article 16. Equality of opportunity in matter of public employment — (1)

There shall be equality of opportunity for all citizens in matters relating to employment

or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place

of birth, residence or any of them, be ineligible for, or discriminated against in respect

of, any employment or office under the State.

(3) Nothing in this Article shall prevent Parliament from making any law

prescribing in regard to a class or classes of employment or appointment to an office

under the Government of or any local or that authority within a state or Union Territory,

any requirement as to residence within that State or Union territory] prior to such

employment or appointment.

(4) Nothing in this Article shall prevent the State from making any provision

for the reservation of appointments or posts in favour of any backward class of citizens

which, in the opinion of the State, is not adequately represented in the services under

the State.

(4-A) Nothing in this Article shall prevent the State from making any provision

for reservation in matters of promotion to any class or classes of posts in the service

under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in

the opinion of the State, are not adequately represented in the service under the State].

(4B) Nothing in this Article shall prevent the State from considering any

unfilled vacancies of a year which are reserved for being filled up in that year in

accordance with any provision for reservation made under clause (4) or clause (4A) as a

separate class of vacancies to be filled up in any succeeding year or years and such

class of vacancies shall not be considered together with the vacancies of the year in

which they are being filled up for determining the ceiling of fifty per cent, reservation

on total number of vacancies of that year.].

(5) Nothing in this Article shall affect the operation of any law which provides

that the incumbent of an office in connection with the affairs of any religious or

denominational institution or any member of the governing body thereof shall be a

person professing a particular religion or belonging to a particular denomination.

The right to equality is guaranteed by Article 14 and 16 of our Constitution.

Article 14 is an injunction to both the legislative and the executive organs of the State

and other subordinate authorities not to deny to any person equality before the law or

equal protection to the laws. Sub-Article (1) of Article 16 guarantees to every citizen

equality of opportunity in matters of Public employment. The equality of opportunity in

the matters of services takes within its fold all stages of service from initial

appointment to its termination including promotion but it does not prohibit the

prescription of reasonable rules for selection and promotion, applicable to all members


of a classified group. Article 16 by clause (2) prohibits discrimination on the ground of

religion, race, caste, sex, descent, place of birth, residence of any of them. Clause (4)

permits an exception to be made in the matter of reservation in favour of backward

classes of citizens. Article 14, 15 and 16 form part of the same constitutional code of

guarantee and supplement each other.

The doctrine of equality before law is a necessary corollary to concept of rule

of law accepted by the Constitution. It is well settled principle that if a person

complains of unequal treatment, the burden squarely lies on that person to place before

the court sufficient materials from which it can be inferred that there is unequal

treatment. Where, however, the necessary materials have not been placed to show how

there has been an unequal, the plea of provisions being violative of Article 14 cannot be

entertained. The concept of equality before law does not involve the idea of absolute

equality amongst all which may be a physical impossibility. All that Article 14

guarantees is the similarity of treatment and not identical treatment. The protection of

equal laws does not mean that all laws must be uniform. Equality before the law means

that among equals, the law should be equal and should be equally administered and that

the likes should be treated alike. Equality before the law does not mean that things

which are different shall be treated as though they were the same. It is true that Article

14 enjoins that the people similarly situated should be treated similarly but amount of

dissimilarity would make the people disentitled to be treated equally is rather a vexed

question. A Legislature, which has to deal with diverse problems arising out of an

infinite variety of human relations must be necessity, have the power of making special

laws, to attain objects; and for that purpose it must have large powers of selection or

classification of persons and things which such laws are to operate. Mere differentiation

or inequality of treatment does not “per se” amount to discrimination within the

inhibition of the equal protection clause. The state has always the power to make

classification on a basis of rational distinctions relevant to the particular subject to be

dealt with. In order to pass the test of permissible classification, two conditions must be

fulfilled, namely (i) that the classification must be founded on an intelligible differentia

which distinguished persons or things that are grouped together from others who are left

out of the group, and (ii) that differentia must have a rational relation to the object

sought to be achieved by the Act. What is necessary is that there must be a nexus

between the basis of classification and the object of the Act. What a law is challenged

as violative of Article 14, it is necessary in the first place to ascertain the policy

underlying the statute and the object intended to be achieved by it. Having ascertained

the policy and the object of the Act, the Court has to apply a dual test in examining the

validity, the test being, whether the classification is rational and based upon an

intelligible differentia which distinguished persons or things that are grouped together

from others that are left out of the group, and whether the basis of differentiation has

any rational nexus or relation with its avowed policy and objects. In order that a law

may be struck down under this Article, the inequality must arise under the same piece

of legislation or under the same set of laws which have to be treated as one enactment.

Inequality resulting from two different enactments made by two different authorities in

relation to the same subject will not be liable to attack under Article 14. Ashutosh

Gupta v. State of Rajasthan, 2002(3) JT 219: 2002(3) SLR 18 (SC).


Concept of equality has an inherent limitation arising from very nature of the

guarantee under the Constitution and those who are similarly circumstanced are entitled

to equal treatment. If there is a rational classification consistent with the purpose for

which such classification was made, equality is not violated. Article 16 of the

Constitution does not bar a reasonable classification of employees or reasonable tests

for selection. Equality of opportunity of employment means equality as between

members of the same class of employees and not equality between members of separate

independent class. Union of India v. IM Havildar/Cerl SC Bagari (No. 664950), AIR

1999 SC 1412: 1999 JT(3) 124: 1999 Lab IC 1561: 1999(2) SLR 775 (SC).

24. Equal Opportunity in Matters Relating to Employment or Appointment— Article 16 of the Constitution lays down that there shall be equality of

opportunity for all citizens in matters relating to employment or appointment to any

office under the State. The right is not only to make an application for the post but to be

considered on merit for the post for which application has been made. Krishna Chandra

Nayer v. Chairman, Central Tractor Organisation, 1962(1) SCJ 215: AIR 1962 SC 602:

1962(3) SCR 187: 1963(1) LLJ 661; Dr. Swayamber Prasad Sudrama v. State of

Rajasthan, AIR 1972 Rajasthan 69. If any appointment is intended to be made on a

regular basis the executive will have to lay down a procedure for such appointment so

that all persons desirous of getting themselves appointed to such posts, get an equal

chance of being considered. Venkat Swami v. Govt. of A.P., 1972 SLR 249. The

equality of opportunity is not confined only to the initial appointments but includes also

the terms and conditions of services as well as promotion to the selection posts. The

equality of opportunity takes within its folds all stages of services from initial

appointment to its termination to the payment of gratuity and pension. Ganga Ram v.

Union of India, 1970(2) SCJ 584: 1970(II) SCWR 221: AIR 1970 SC 2178: 1970(3)

SCR 481: 1970(1) SCC 377: 1970 SLR 755; Ram Rattan Bakshi v. State of Punjab, AIR

1968 Punjab 436; Harikishan Lal Chopra v. State of Punjab, 1974 SLJ 1; Mohammad

Shujat Ali v. Union of India, AIR 1974 SC 1631: 1975(1) SCR 449: 1975(3) SCC 76:

1974 (2) SLR 508: 1974 Lab IC 1103.

The rule of weight-age which in particular circumstances is unreasonable and

arbitrary cannot be sustained. State of Maharashtra v. Raj Kumar, 1982(2) SLJ 549:

1982 Lab IC 1597: AIR 1982 SC 1301: 1982(3) SCC 313.

25. Reservation and Equality — V.R. Krishna Iyer, J. speaking for the

Supreme Court in Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India,

1980(3) SLR 645 said, “Centuries of calculated oppression and submission admission

reduced a considerable section of our community to a life of serfdom. It would be well

neigh impossible to raise their standards if the doctrine of equal opportunity was strictly

enforced in their case. They would not have any chance if they were made to enter the

open field of competition without adventitious aids till such time when they could stand

on their own legs.” Reservation in promotions was upheld in General Manager,

Southern Railway v. Rangachari, 1961(2) SCJ 424: 1962(2) SCR 586: AIR 1962 SC 36:

1970(2) LLJ 289; see also State of Kerala v. N.M. Thomas, AIR 1976 SC 490: 1976(1)

SCR 906: 1976(2) SCC 310: 1976 Lab IC 395: 1976(2) SLR 805.


26. Temporary or Permanent Employees, Equality of Opportunity — It is

settled that Article 16 of the Constitution which ordains equality of opportunity for all

citizens in matters relating to employment or appointment to any office in the State

applies equally to temporary or permanent employees. Abdul Wahid Khan v. Hon”ble

Chief Justice, 1969 SLR 726.

See also P.K. Mary v. Director, I.C.A.R., 1990(6) SLR 322 (CAT Ernakulam);

Harinder Sharma v. State of Punjab, 1998(1) SLR 361 P&H (DB).

27. Equality of Treatment — It is now well settled that employees under

Government are entitled to equality of treatment both at the time of appointment and at

all material stages during continuation of their service. Anil Chandra v. State of Orissa,

AIR 1970 Ori 19; Ganga Ram v. Union of India, 1970(2) SCJ 584: 1970(1) SCC 377:

1970(II) SCWR 221: AIR 1970 SC 2178. The doctrine of equality before law and equal

protection of laws and equality of opportunity in the matter of employment and

promotion enshrined in Articles 14 and 16 of the Constitution which is intended to

advance justice by avoiding discrimination is attracted only when equals are treated as

unequals or where unequals are treated as equals. Equality is for equals, that is to say,

those who are similarly circumstanced are entitled to an equal treatment. Ramesh

Prasad Singh v. State of Bihar, AIR 1978 SC 327: 1978(1) SCR 787: 1978(1) SCC 37:

1978 Lab IC 173: 1978(1) SLR 268: 1978 SLJ 1; Air India v. Nargesh Meerza, 1982(1)

SLR 117 (SC).

28. Appointment by Advertisement — If the government advertises the

appointments and the conditions of service to the appointments and makes a selection

after advertisement there would be no breach of Article 15 or Article 16 because every

body who is eligible in view of the conditions of service would be entitled to be

considered by the State. B.N. Nagarajan v. State of Mysore, 1967(2) SCJ 664: AIR

1966 SC 1942: 1966(2) SCR 682; see also Dr. Amarjit Singh Ahluwalia v. State of

Punjab, AIR 1975 SC 984: 1975(3) SCR 82: 1975(3) SCC 503: 1975 SLJ 220: 1975

SLR 171: 1975 Lab IC 613.

See also Dr. Arvind Kumar v. State of U.P., 1988(1) SLR 701 (All); Raj Kumar

v. Shakti Raj, AIR 1997 SC 2110: 1997(2) JT 688: 1997 Lab IC 2088: 1997(9) SCC

527: 1997(2) SLR 130 (SC); Arun Tewari v. Zila Mansavi Shikshak Sangh, AIR 1998

SC 331: 1998(2) SCC 332: 1998(1) SLR 219 (SC); Jasbir Singh v. State of Punjab,

1998(1) SLR 312; Pushpa Sharma v. State of Haryana, 1998(1) SLR 558 (P&H) (DB).

29. Appointment, Qualification for — (i) It is open to the appointing

authority to lay down the requisite qualifications for recruitment to Government service

and it is open to the authority to lay down such pre-requisite conditions of appointment

as would be conducive to the maintenance of proper discipline amongst Government

servants. Like all other employers, Government is also entitled to pick and choose from

amongst a large number of candidates offering themselves for employment under the

Government. Banarsidas v. State of U.P., 1956 SCR 357: 1956 SCJ 529: AIR 1956 SC

520; Mohinder Singh v. State of Haryana, 1982(1) SLR 884.

(ii) In the absence of rules, qualifications for a post can validly be laid down in

the self same executive order creating the service or post and filling it up according to


these qualifications. Ramesh Prasad Singh v. State of Bihar, AIR 1978 SC 327: 1978(1)

SCR 787: 1978(1) SCC 37: 1978(1) SLR 268: 1978 SLJ 1: 1978 Lab IC 173.

(iii) Eligibility for being appointed depends on the question where the

candidate possesses the minimum qualification prescribed for the post. If in addition to

the minimum qualification prescribed for the post, the candidate possesses any further

qualification, he will not be ineligible for the post. Karnataka Public Service

Commission v. N.C. Hugar, 1981(1) SLR 469 (FB).

(iv) Academic merit cannot be judged to be the sole test for appointment. M.A.

Jauhri v. State of J&K, 1971(1) SLR 489.

See also Dhankaur Hooda v. State of Haryana, 1989(2) SLR 501 P&H;

S.S.R.N. Sarma v. Registrar (Admn), High Court of A.P., Hyderabad, 1997(4) SLR 642

(AP) (FB); Sudeesh T. Balaraman v. State, 1997(4) SLR 431 Ker.

30. Relaxing or Altering Qualifications — (i) In the absence of any

obligations, statutory or otherwise it is open for the Government to alter the

qualifications already specified, and for the Public Service Commission to select

candidates on the basis of altered qualifications. Ahmad Thonnon Thodi v. State of

Kerala, 1970 SLR 34.

(ii) It is true that no relaxation in qualifications can be made when an

advertisement has duly been issued inviting applications and persons possessing the

qualifications advertised as prescribed are available and have submitted their

applications. If a relaxation has to be made, there is a duty cast to re-advertise the post.

Where the advertisement itself contained a relaxation clause, relaxation was upheld as

there was no statute or regulation having the force of law by which qualifications were

prescribed for the post and it was the exclusive power of Administration to prescribed

the qualifications. Swaran Lata v. Union of India, 1979(2) SCR 953: 1979 SLJ 170:

1979(1) SLR 710 (SC).

(iii) It is open to the Government to change conditions on which applications

were invited in the advertisement and offer appointments on new conditions. O.P.

Yuggal v. Secretary to Government of Punjab, 1972 SLR 444; H.C. Widhani v. Union

of India, 1969 SLR 812. The dictation of Government to the authorities concerned for

giving preference to persons having undergone vasectomy operation was violative of

Article 16. Abhai Kumar Singh v. Director School Education, 1979(2) SLR 97.

(iv) Advertisement calling applications for posts mentioned qualifications and

other requirements. No mention in advertisement that the qualifications and conditions

can be relaxed. Selection of candidates in relaxation of qualifications and other

requirements struck down as the selection was detriment of constitutional right of other

citizens. M.S.E.B. Engineer”s Association v. Maharashtra State Electricity Board, AIR

1968 Bombay 65: 1968 SLR 273; Atam Prakash Mohan v. Kurukshetra University,

1970 SLR 16; Kuldip Chand v. Union of India, 1970 SLR 406; Kuldip Singh Gill v.

State of Punjab, 1972 SLR 706; Harnam Singh v. State of H.P., 1974(2) SLR 350;

Mohammed Maqbool Pandit v. Chairman, District Recruitment Board, 1981(1)

SLR 490.


(v) It is a well established law that qualifications for a particular post can be a

rational differentia within the meaning of Article 16. It is equally clear that when a

qualification has been prescribed for a post, that cannot be obliterated by posting those

who do not have that qualification as against those who have that qualification. Subhash

Chand Jain v. Delhi Electric Supply Undertaking, AIR 1981 SC 75: 1979(3) SCC 786:

1980 Lab IC 1189: 1981(3) SLR 212: 1979(1) SLR 306: 1979 SCC (Lab) 345: 1981(1)

SCJ 305.

(vi) But there can be no relaxation of the basic or fundamental rules of

recruitment. Suraj Parkash Gupta v. State of Jammu & Kashmir, AIR 2000 SC 2386:

2000(7) SCC 561: 2000(5) JT 413: 2000 Lab IC 2588: 2000(4) SLR 486.

31. No Legal Duty to fill-up all vacancies advertised — Advertisement was

published to hold an examination for recruitment of candidates for 15 vacancies. State

Government made seven appointments in serial order of the list according to merit of

those whose secured not less than 55% of marks. Held, there is no legal duty on the

State to fill up all the 15 posts and those who got less than 55% have no right to claim

that selections be made of all those who obtained less than minimum fixed by

Government. State of Haryana v. Subhash Chander Marwaha, 1973(1) SCWR 947:

AIR 1973 SC 2216: 1974(1) SCR 165: 1974(3) SCC 220: 1973(2) SLR 137: 1973 SLJ

795; Balak Ram v. State of H.P., 1976 Lab IC 1052: 1976(1) SLR 520; Davinder Singh

v. State of Punjab, 1982(2) SLR 249; See also Arvind Kumar v. State of U.P., 1988(1)

SLR 701 (All); Arun Tewari v. Zila Mansavi Sikshak Sangh, AIR 1996 SC 2107:

1996(8) SCC 441: 1996(4) JT 738: 1996(4) AD(SC) 271: 1998(1) SLR 219 (SC); Jasbir

Singh v. State of Punjab, 1998(1) SLR 312 (P&H) (DB); Pushpa Sharma v. State of

Haryana, 1998(1) SLR 558 (P&H) (DB).

32. No Legal Duty to fill-up Vacancies and not allow Vacancies to be

accumulated — Even when there is a vacancy, the State is not bound to fill up such

vacancy nor is there any corresponding right vested in an eligible employee to demand

that such post be filled up. This is because the decision to fill up a vacancy or not vests

with the employer who for good reasons; be it administrative, economical or policy;

decide not to fill up such posts. This principle applies with all the more force in regard

to the creation of new vacancies like by encadrement of new posts; more so when such

encadrement or creation of new posts is statutory controlled. Tamil Nadu Administrative

Service Officers Association v. Union of India, AIR 2000 SC 1898: 2000 SC(5) 728:

2000(3) LLN 474: 2000(2) SLR 659 (SC); See also State of Haryana v. Subhash

Chandra Marwaha, 1974(3) SCC 220: 1973(2) SLR 137 (SC).

It is neither for the petitioner nor for the Court to assess the exigencies of

administration and it is primarily for those who are in charge of the administration to

decide whether it is in the interest of administration to allow particular vacancies to be

accumulated for a particular period. G.C. Dhiman v. State of H.P., 1979(1) SLR 522.

33. Mere Selection Would Not Give Right to Claim Appointment — A mere

selection by the Selection Committee or Service Selection Board would give no

indefeasible right to the selected individual to claim appointment to the post in the

absence of any order to the same effect by the appointing authority itself. State of

Punjab v. Saroj Devi, 1981(1) SLR 49; Davinder Singh v. State of Punjab, 1982(2)


SLR 249. See also Karnataka State Road Transport Corporation v. K.C.

Mudalgiryappa, 1988(1) SLR 106 (Kar).

Mere empanelment or inclusion of one”s name in the selection list does not

give him a right to appointment. Govt. of Orissa through Secretary, Commerce &

Transport Deptt., Bhubaneswar v. Haraparsad Das, 1998(1) SLJ 431.

But a duly selected person for being appointed and illegally kept out of

employment on account of untenable decision on the part of the employer, can not be

denied the said appointment on the ground that the panel has expired in the meantime.

Purushottam v. Chiarman, M.S.E.B., 1999(6) SCC 49: 1999(9) JT 334: 2001(1) SLR

62 (SC).

34. Recruitment by Open Competition — The principle of recruitment by

open competition aims at ensuring equality of opportunity in the matter of employment

and obtaining the service of the most meritorious candidates. State of Mysore v. S.R.

Jayaram, 1968(2) SCJ 38: AIR 1968 SC 346: 1968(1) SCR 349: 1968 Lab IC 357.

In one case the relevant rule dealing with recruitment was as follows:.

“Rule 4. Method of recruitment.— Recruitment in the service shall be by the

following methods:.

(a) By competitive examination held in accordance with part II of the rules.

(b) By promotion of class II officers of the signal engineering department. Not

more than 40 percent of the vacancies shall be filled by departmental promotion. This

percentage is likely to be varied from time to time, if found necessary.

Note. If the quota of 40 percent reserved for class II officers for promotion to

class I is not fully utilized, the remaining vacancies shall be filled by direct recruitment

under clause (a).

(c) By occasional admission of other qualified persons appointed by the

Government on the recommendation of the commission.

On interpretation of above rules it was held that no doubt the second sentence

in clause (b) places a ceiling of 40 percent on the vacancies to be filled up by

departmental promotion. The note reinforces this mandate by providing that in case of

shortfall in the promotional quota of 40 percent, those vacancies remaining should be

allocated to direct recruits. That means, in a given year, the direct recruits can go

beyond 60 percent, if sufficient number of promotee officers are not available. It is a

different thing that it had never happened and the direct recruitment could not be made

in some years even to the full extent of 60 percent. But, that is what the rule provides.

However, the rule in so far as it operates against the promotee officers has been diluted

to a certain extent by reserving the power to vary the percentage allocated to promotees.

The variation, in our view, could be both downward and upward, depending upon the

exigencies of service and the march of events. Going by the plain language, the

variation could be either way. If the variation was intended only to curtail but not to

enhance the promotion quota of 40 percent, suitable language could have been

employed. That apart, the word “not more than” itself would have provided some


flexibility to the appointing authority to reduce the promotee quota in a given year for

good and relevant reasons. Hence, it is not appropriate and proper to limit the ambit of

variation to the reduction of percentage. If the last sentence in clause (b) is to be read

subject to the preceding sentence with the appended note, the very purpose for which

such power is reserved to the government will be lost. A reading of the rule so as to

confine the variation of percentage to impinge on the normal promotee quota but not

vice versa is clearly unwarranted either on the plain language of the provision or its

intendment. There is nothing which precluded the government of India to take a policy

decision that the percentage should be so varied so as to give the benefit to the

stagnating promotee officers. When once such policy decision is taken, the normal rule

that 40 percent is the maximum for departmental promotees would stand protanto

modified for the time being. Of course, such variation, either upward or downward

should be based on rational basis and relevant considerations. When once such test is

satisfied, there is no difficulty in giving effect to the variation of percentage so as to

operate in favour of promotee officers. See Indian Railway, Class II Officers Fedn. v.

Anil Kumar Sanghi, AIR 2002 SC 3314: 2002(8) SCC 98: 2002(7) JT 325: 2002 Lab IC

3266: 2002 AIR SCW 3853: 2002(4) All MR 869: 2002(6) SLR 473 (SC): 2003

SCC(L&S) 5: 2003(1) SLJ 85.

35. Appointment of any one who is more suitable — Rule reserving power to

the Government to appoint any one it considers more suitable to a particular post is

violative of Articles 14 & 16(1). State of Mysore v. S.R. Jayaram, 1968(2) SCJ 38: AIR

1968 SC 346: 1968(1) SCR 349: 1968 Lab IC 357.

36. Recruitment Ratio — Recruitment to posts from different sources. What

ratio would be adequate and equitable would depend upon the circumstances of each

case and the requirements and needs of a particular post. G.D. Kelkar v. Chief

Controller Imports, 1967(1) SCWR 961: AIR 1967 SC 839: 1967(2) SCR 29: 1967(1)

LLJ 691: 1967(14) FLR 302.

37. Backward Class, Meaning of — In order to qualify for being called a

“backward class citizen” he must be a member of a socially and educationally backward

class. It is not merely the educational backwardness which makes a class of citizens

backward; the class identified as a class as above must be both educationally and

socially backward. Janki Prasad v. State of J&K, 1975(2) SCJ 50: AIR 1973 SC 930;

see also M.R. Balaji v. State of Mysore, 1963 Supp(1) SCR 439: AIR 1963 SC 649;

State of A.P. v. P. Sagar, 1968(2) SCJ 778: 1968(3) SCR 595: AIR 1968 SC 1379 and

Triloki Nath Tiku v. State of J&K, 1969(1) SCJ 306: 1969(1) SCWR 489: AIR 1969 SC

1: 1969(1) SCR 103: 1970(1) LLJ 629: 1968(17) FLR 367.

38. Reservation of Posts for Backward Classes — (i) Clause (4) of Article 16

undoubtedly empowers the State to make reservations of appointments or posts in

favour of any backward class of citizens so as to give the class an adequate

representation in the services under State. Triloki Nath Tiku v. State of J&K, 1969(1)

SCJ 306: 1969(1) SCWR 489: AIR 1969 SC 1; State of Punjab v. Hiralal, 1971(2) SCJ

471: 1971(1) SCWR 46: 1971(2) SLR 98; Mohinder Kumar Sood v. H.P. Public Service

Commission, AIR 1982 HP 78: 1982(3) SLJ 313: 1982(2) SLR 344.


(ii) Order under Article 16(4) must be duly published. K.S. Nair v. Oil &

Natural Gas Commission, 1974(2) SLR 116.

(iii) Reservation can be made by executive order, legislation is not necessary.

Mangal Singh v. Punjab State, AIR 1968 Punjab 306.

(vi) Castes or groups are specified in relation to a given State of Union

Territory, which obviously means that such caste would include caste belonging to an

OBC group in relation to that State or Union Territory for which it is specified. The

matters that are to be taken into consideration for specifying a particular caste in a

particular group belonging to OBCs would depend on the nature and extent of

disadvantages and social hardships suffered by that caste or groups in that State.

However, it may not be so in another State to which a person belongs thereto goes by

migration. It may also be that a caste belonging to the same nomenclature is specified in

two states but the considerations on the basis of which they been specified may be

totally different. So the degree of disadvantages of various elements which constitute

the data for specification may also be entirely different. Thus, merely because a given

caste is specified in one State as belonging to OBCs does not necessarily mean that if

there be another group belonging to the same nomenclature in other State and a person

belonging to that group is entitled to the rights, privileges and benefits admissible to the

members of that caste. These aspects have to be borne in mind in interpreting the

provisions of the Constitution with reference to application of reservation to OBCs.

Municipal Corporation of Delhi. v. Veena, AIR 2001 SC 2749: 2001(6) JT 413: 2001(6)

SCC 571: 2001(3) SCJ 390.

39. Scheduled Castes & Scheduled Tribes, Meaning of — Article 366(24) -

“Scheduled Castes” means such castes, races or tribes or parts of or group within such

castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the

purposes of this Constitution.

Article 366(25) - “Scheduled Tribes” means such tribes or tribal communities

or parts of or groups within such tribes or tribal communities as are deemed under

Article 342 to be Scheduled Tribes for the purposes of this Constitution.

Scheduled Castes and Scheduled Tribes are not a caste within the ordinary

meaning of caste. No court can come to a finding that any caste or any tribe is a

Scheduled Caste or Schedule Tribes. Scheduled Caste is a caste as notified under

Article 341 and Scheduled Tribe is such tribe or part of tribe as notified under Article

342. The object of Articles 341 and 342 is to provide protection to the members of

Schedule Castes and Scheduled Tribes having regard to the economic and educational

backwardness from which they suffer. Bhaiyalal v. Hari Kishan Singh, 1966(2) SCJ 77:

1965(2) SCR 877: AIR 1965 SC 1577; State of Kerala v. Thomas, 1976(2) SCR 906:

AIR 1976 SC 409; Akhil Bhartiya Sashit Karamchari Sangh (Railway) v. Union of

India, 1980(3) SLR 645 (SC).

See also N.C. Lingam v. Government of India, 1985(3) SLR 682 AP (DB); G.

Nooka Rao Reddy v. G.M. South, Central Railway, 1989(3) SLR 488 (CAT Hyderabad).

40. Reservation of Posts for Scheduled Castes and Scheduled Tribes — (i)

There is no constitutional duty imposed on the Government to make a reservation for


Scheduled Castes and Scheduled Tribes either at the initial stage of recruitment or at

the stage of promotion. Article 16(4) is an enabling provision and confers a

discretionary power on the State to make a reservation of appointments in favour of

backwards class of citizens which in its opinion, is not adequately represented in the

service of the State. C.A. Rajendran v. Union of India, 1968(1) SCR 721: 1968(2) SCJ

19: AIR 1968 SC 507: 1968 SLR 65; State of Punjab v. Hiralal, 1971(3) SCR 267:

1971(2) SCJ 471: AIR 1971 SC 1777: 1971(2) SLR 98; Dalip Singh v. Union of India,

1981(1) SLJ 470.

(ii) State can provide reservations not only for fresh appointments but also at

the promotion tier for selection posts. General Manager, Southern Railway v.

Rangachari, 1961(2) SCJ 424: AIR 1962 SC 36: 1962(2) SCR 586; State of Kerala v.

N.M. Thomas, 1976(1) SCR 906: AIR 1976 SC 409; S.S. Sharma v. Union of India,

1981(1) SCR 1184: 1981(1) SCC 397: AIR 1981 SC 588: 1981(2) SCJ 109: 1981 Lab

IC 131: 1981(1) SLJ 443: 1980(3) SLR 511.

(iii) State can provide reservation for selection posts. Akhil Bhartiya Soshit

Karamchari Sangh (Railway) v. Union of India, 1980(3) SLR 645 (SC).

(iv) Reservation of a reasonable percentage of posts for members of the

Scheduled Castes and Scheduled Tribes is within the competence of the State. What the

percentage ought to be must necessarily depend upon the circumstances obtaining from

time to time. Unlimited reservation of appointments may be impermissible because it

renders Article 16(1) nugatory. An exercise of power under Article 16(4) does not mean

that the provision made by the State should have the effect of virtually obliterating the

rest of Article particularly clauses (1) and (2) thereof. T. Devadasan v. Union of India,

1964(4) SCR 680: AIR 1964 SC 179: 1965(2) LLJ 560; M.R. Balaji v. State of Mysore,

1963 Sup(1) SCR 439: AIR 1963 SC 649; Akhil Bhartiya Soshit Karamchari Sangh

(Railway) v. Union of India, 1980(3) SLR 645 (SC); Joginder Singh Sethi v. Punjab

Government, 1983(1) SLJ 34.

(v) Any reservation of appointments made in favour of Tribes specified in the

Schedule to the Scheduled Castes Order in relation to any particular State is not

violative of Article 16(2) of Constitution — V.B. Singh v. State of Punjab, 1976(1) ILR

P&H 769. The order restricting the reservation to the Scheduled Castes and Scheduled

Tribes belonging to State of Himachal Pradesh only is saved by Article 16(4) of the

Constitution and cannot be struck down. Mahinder Kumar Sood v. H.P. Public Service

Commission, AIR 1982 HP 78: 1982(2) SLJ 313: 1982(2) SLR 344 (FB).

(vi) The sole purpose of making a special provision of reservation in favour of

Scheduled Castes Government Service is to promote the development of society as a

whole and to give adequate representation to backward communities. Thus a reasonable

balance has to be struck between the claim of backward class employees and those of

other employees. The policy of reservation cannot be used for creating monopoly or for

unduly disturbing the legitimate interests of other employees. Reservation beyond

reasonable limits entrenches upon the principle of equality. Joginder Singh Sethi v.

Punjab Government, 1983(1) SLR 442,446 paras 7 and 8: 1983(1) SLJ 34 (P&H).


(vii) In making reservation for Scheduled Castes and Backward Classes,

Government may take notice of their strength in the various services. But that does not

mean that on the basis of executive instructions, a particular cadre may be made to be

manned by Scheduled Castes etc. exclusively or to an abnormal extent. Joginder Singh

v. Punjab Government 1983(1) SLR 442: 1983(1) SLJ 34 (P&H).

(viii) Reservation: Stage of Selection for Lower School Course —

Reservation of posts for Scheduled Castes and Backward Classes cannot be made at the

stage of the process for selection of constables for being sent to the lower school course

in the Police Training School under Punjab Police Rules, 1934, Rules 13.7 and 13.8.

Thus process cannot be equated to promotion. Ram Kumar v. State of Haryana, 1983(1)

SLR 435: 1983(1) SLJ 405 (P&H).

(ix) Mistakes in Description Cannot be Corrected — In a Karnataka case,

respondent originally described the caste (Naik) as Backward Tribe. Later the Tehsildar

certified that it was a Scheduled Tribe. Petitioner objected to the respondent being

given this benefit. It was held that Government always had the power of correcting

mistakes. B.K. Krishna v. State of Karnataka, 1984(3) SLR 733 (Kar).

(x) For appointment in the Delhi Judicial Services reserved quota (for

Scheduled Castes etc.), must be fixed on the basis of total number of vacancies to be

filled up. It cannot depend on the fortuitous circumstances as to how many candidates

have qualified for the general seats. Prem Prakash v. Union of India, AIR 1983 SC

1831: 1985(1) SCR 564: 1983 Supp SCC 687: 1984 Lab IC 1448: 1984 Lab IC 1448:

1985(2) LLJ 341: 1985(2) SLR 757: 1984(2) LN 737: 1984(2) SLJ 376.

(xi) Where reservation for Scheduled Castes etc. is made for a certain

percentage than persons belonging to the reserved category can take advantage of the

reservation only till that percentage is reached and not beyond that. For working out

this percentage, the promotees/appointees in the cadre whether on the basis of

reservation or otherwise have to be taken note of. Any promotion of Scheduled Castes

candidate beyond the prescribed limit is not a non est. Mohan Lal Mann v. State of

Punjab, 1983(1) SLR 650, 653 para 11 (P&H).

(xii) Policy decision taken by the State of Madhya Pradesh that for direct

recruitment, relaxation of passing marks by 10% for SC/ST candidates who compete for

initial appointments to government service was to be made available and was also to be

available to those in service SC/ST candidates who appear at the departmental

examination for being recruited to the higher posts as in service candidates. Held that

this was a clear cut government policy legally permissible under Article 16(4) of the

Constitution for giving 10% relaxation of passing marks to such reserved category

candidates as compared to general category candidates. Haridas Parsedia v. Urmila

Shakya, AIR 2000 SC 278: 2001(1) SCC 81: 1999(9) JT 152: 2000 Lab IC 222: 2000(1)

SLR 310 (SC).

41. Reservation: Carry Forward and Roster — (i) Reservation in

promotional avenues based on roster system is valid. B.R. Acharya v. State of Gujarat,

1984(3) SLR 619 (Guj.).


(ii) If a junior officer belongs to Scheduled Caste is promoted in preference to

senior officers of other communities, there is no illegality. B.R. Acharya v. State of

Gujarat, 1984(3) SLR 619 (Guj) .

(iii) If there is only one vacancy and a person belonging to Scheduled Tribe is

promoted, there is no illegality. B.R. Acharya v. State of Gujarat, 1984(3) SLR 619

(Guj) .

(iv) Reservation can be made by statutory rules or executive orders. B.R.

Acharya v. State of Gujarat, 1984(3) SLR 619 (Guj).

(v) Where the roster has been drawn up for High Court employees under

Article 229 of the Constitution, it has to be followed. “The very idea of drawing up a

roaster is to depart from the general principle that seniority in the lower cadre must be

reflected in promotion also.” Sheodhar Singh v. State of Bihar, 1985(2) SLR 470, 475,

para 7 Pat (FB).

(vi) Under A.P. State Road Transport Corporation Employees (Reservation)

Regulations, 1966, Regulation 12(2)(b), where a Scheduled Caste candidate is selected

upon competition he will still be placed on the Scheduled Caste category in the roster

and be appointed in the quota reserved for Scheduled Castes so that for promotion he

will rank at No. 1. C. Damodar Das v. T. Penchaliach, 1984(3) SLR 841 (AP) (DB).

(vii) Vacancies are to be filled up as per roster point, whether the vacancies

arise on account of retirement of an officer of the Scheduled Caste or Tribe. I.H. Patel

v. R.K. Mishra, 1983(3) SLR 24, 25, para 5 Guj.

(viii) In U.P. Subordinate Services, 18 percent of direct recruitment posts are

reserved for Scheduled Castes, with the scheme contemplating a roaster register for

every 25 vacancies. Appointment in the grade of Hindi stenographer was refused on the

ground that more than 21 per cent of the posts were being manned by persons belonging

to Schedule Castes. Order was held improper. If the roster were to be followed, the post

would have gone to Scheduled Castes. Hira Lal v. District Judge, Ghaziabad, 1983(2)

SCR 739: AIR 1984 SC 1212: 1983(3) SCC 371: 1983 Lab IC 776: 1983(2) LLN 338:

1983(1) SLJ 702: 1983(2) SLR 79: 1983 SCC (Lab) 389: 1983 IJR (Civil) 59.

42. Reservation of Posts in Higher Services — (i) There is no discrimination

as between classes I and II where there is no reservation and classes III and IV where

reservation has been made for scheduled castes and scheduled tribes. In view of the

requirement of efficiency in the higher echelons of service it is obvious that the

classification made in the impugned order is reasonable. C.A. Rajendran v. Union of

India, 1968(2) SCJ 19: 1968(1) SCWR 574: AIR 1968 SC 507: 1968(1) SCR 721.

(ii) Where appointments and promotions to responsible public offices are made

greater circumspection would be required in making reservations for the benefit of any

backward class because efficiency and public interest must always remain paramount. It

is implicit in the idea of reservation that a less meritorious person is to be preferred to

another who is more meritorious. Janki Prasad v. State of J&K, 1975(2) SCJ 50: AIR

1973 SC 930: 1973(3) SCR 236: 1973(1) SCC 420: 1973(1) SLR 719.


(iii) Reservation in respect of Scheduled Castes and Scheduled Tribes in the

examination for recruitment to the Himachal Judicial Service upheld. Mohinder Kumar

Sood v. H.P. Public Service Commission, AIR 1982 HP 78: 1982(2) SLJ 313: 1982(2)

SLR 344 (FB).

43. Reservation at the level of super specialisation— At the level of super

specialisation there cannot be any reservation because any dilution of merit at this level

would adversely affect the national goal of having the best possible people at the

highest levels of professional and educational training. At the level of a super

speciality, something more than a mere professional competence as a doctor is required.

A super specialist acquires expert knowledge in his speciality and is expected to

possess exceptional competence and skill in his chosen field, where he may even make

an original contribution in the form of new innovative techniques or new knowledge to

fight diseases. It is in public interest that we promote these skills. Such high degrees of

skill and expert knowledge in highly specialised areas, however, cannot be acquired by

anyone or everyone. For example, specialised sophisticated knowledge and skill and

ability to make right choices of treatment in critical medical conditions and even ability

to innovate and device new lines of treatment in critical situations, requires high levels

of intelligent understanding of medical knowledge or skill and a high ability to learn

from technical literature and from experience. These high abilities are also required for

absorbing highly specialised knowledge which is being imparted at this level. It is for

this reason that it would be detrimental to the national interest to have reservations at

this stage. Opportunities for such training are few and it is in the national interest that

these are made available to those who can profit from them the most viz. the best brains

in the country, irrespective of the class to which they belong. Preeti Srivastava v. State

of Madhya Pradesh, 1999(4) SLR 687: AIR 1999 SC 2894: 1999(7) SCC 120: 1999(15)

JT 498.

44. Reservation for Scheduled Castes and Scheduled Tribes, Standard in

Qualifying Examination— It is now well accepted, and has been affirmed by

successive decisions of Supreme Court, that relaxed eligibility criteria would be

justified in the case of candidates of backward classes. S.S. Sharma v. Union of India,

1981(2) SCJ 109: 1981(1) SLJ 443: 1981 Lab IC 131: AIR 1981 SC 588: 1981(1) SCR

1184: 1981(1) SCC 397: 1980(3) SLR 511. If lesser marks are prescribed for SC and

STs, or extra marks are added to give them an advantage, this does not militate against

the Constitution. Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India,

1980(3) SLR 645 (SC).

45. Reservation of Vacancies for Ex-servicemen— (i) The State is justified in

classifying them separately as a source of recruitment and reserving posts for them.

Jagdish Rai v. State of Haryana, 1977 SLJ 498: 1977(1) SLR 77 (FB); Mohinder

Kumar Sood v. H.P. Public Service Commission, 1982(2) SLJ 313: 1982(2) SLR 344:

AIR 1982 HP 78.

(ii) If there is a reserved post in a particular service, the said post has to be

advertised so as to enable all eligible persons to apply and compete. State of Punjab v.

Captain Rattan Pal Sharma, 1982(1) SLR 364.


(iii) Where rules regarding reservation for Released Armed Forces contain no

definition of such personnel, persons released on compassionate grounds or on their

own cannot be excluded from the benefit of reservation. Ram Kumar v. Chairman,

Departmental Recruitment Committee, 1983(2) SLR 758 (P&H).

(iv) When making provision for reservation of posts for dependent children it is

permissible not to provide for reservation for dependents of deceased, ex-servicemen.

Dr. G.K. Diwan v. State of Punjab, 1985(2) SLR 403 P&H (DB).

(v) With reference to the Punjab Rules as to reservation for ex-servicemen,

namely the demobilised Indian Armed Forces etc. Rules 1972, Rule 2, a person who

joined the army as non-commissioned officer before 1962 but was appointed as a

commissioned officer on or after the 1st November, 1962 (i.e. the date mentioned in the

rules), is also eligible for appointment against the reserve quota. The crucial date is also

the date of commissioning. Mohan Singh v. State of Punjab, 1983(1) SLR 454 (P&H).

(vi) Petitioner was considered not eligible for a post reserved for ex-servicemen

and the post was thrown open to the general category. Petitioner”s contention that he

should be considered at the post of the other candidates from the general category was

held to be unacceptable. Gursher Singh v. State of Punjab, 1984(1) SLR 730 (P&H)

following Jagmohan Singh v. State of Punjab, 1980(3) SLR 400.

(vii) Petitioner was senior in service to respondent. But respondent was

promoted as assistant and petitioner was deprived of it on the ground of lack of five

years experience as clerk. This requirement was, however, inserted by rules which had

no retrospective effect. Denial of promotion to the petitioner was held to be illegal.

Gurmit Singh v. Chief Secretary, Government of Punjab, 1983(1) SLR 141 P&H.

(viii) Rule 2(c)(ii) of the Ex-servicemen (Re-employment in Central & Civil

Services and Posts Rules, 1979 covers a person who (though in actual service) accepts

release within the next 6 months. G.K. Prajapati v. State Bank of India, 1985(2) SLR

690 Paras 8-9 (Guj).

46. Reservation of Seats or Posts for Women — Article 15(3) of Constitution

is so widely worded that it can successfully help women and in that process can make

men ineligible so long as this is done as “special provision for women”. The mere fact

that reservation of some posts is made for women does not mean that there is a

complete exclusion of men. Charan Singh v. Union of India, 1979(1) SLR 553: 1979

SLJ 263 see also Note 81. Disqualification on ground of sex.

But there could not be 100% reservation for women. S. Renuka v. State of A.P.,

2002(3) SLR 407 (SC): 2002(3) JT 246: 2002(3) SCC 641.

47. Reservation in Judiciary — Under Article 16(4) the State is enabled to

provide for reservations in Services. But so far as “Judicial Service” is concerned, such

reservation can be made by the Governor, in exercise of his rule making power only

after consultation with the High Court. The enactment of any statutory provision de

hors consultation with the High Court for regulating the recruitment to District

Judiciary and to Subordinate Judiciary will clearly fly in the face of the complete

scheme of recruitment and appointment to Subordinate Judiciary and the exclusive filed


earmarked in connection with such appointments by Articles 233 and 234. It is not as if

that the High Courts being constitutional functionaries may be oblivious of the need for

a scheme of reservation if necessary in appropriate cases by resorting to the enabling

provision under Article 16(4). The High Court can get consulted by the Governor for

framing appropriate rules regarding reservation for governing recruitment under

Articles 233 and 234. But so long as it is not done, the Legislature cannot, by an

indirect method, completely bypassing the High Court and exercising its legislative

power, circumvent and cut across the very scheme of recruitment and appointment to

District Judiciary as envisaged by the makers of the Constitution. Such an exercise,

apart from being totally forbidden by the Constitutional scheme, will also fall foul on

the concept relating to “separation of powers between the legislature, the executive and

the judiciary” as well as the fundamental concept of an “independent judiciary”. Both

these concepts are now elevated to the level of basic structure of the Constitution and

are the very heart of the Constitutional scheme. State of Bihar v. Bal Mukund Sah, AIR

2000 SC 1296: 2000(4) SCC 640: 2000(3) JT 221: 2000(2) SLR 448: 2000 Lab IC

1389: 2000(2) SCJ 599.

48. Basis of Classification for Discrimination Not to be Arbitrary — The

Supreme Court in Ajay Hasia v. Khalid Mujib Sahravardi, AIR 1981 SC 487: 1981(2)

SCR 79: 1981(1) SCC 722: 1981(1) LLJ 103: 1980(3) SLR 467: 1981(2) SLJ 651 and

Ramana Deyaram Shetty v. International Airport Authority of India, AIR 1979 SC

1628: 1979(3) SCR 1014: 1979(3) SCC 489: 1979(2) LLN 217: 1981(1) LLN 270 have

held that the State must show that the discriminatory action was not arbitrary. It must

now be taken to be well settled that what Article 14 strikes at is arbitrariness.

49. Reasonable Classification — The fundamental principle is that Article 14

forbids class legislation but permits reasonable classification for the purpose of

legislation which classification must satisfy the turtwin tests of classification being

found on an intelligible differentia which distinguishes persons or things that are

grouped together from those that are left out of the group and that differentia must have

a rational nexus to the object sought to be achieved by the statute in question. The State

would have to affirmatively satisfy the Court that the turtwin tests have been satisfied.

Case law discussed. D.S. Nakara v. Union of India, AIR 1983 SC 130: 1983(1) SCC

305: 1983(1) LLN 289: 1983(2) SLR 246: 1983 Lab IC 1 (SC): 1983(1) SLJ 131.

After a review of a large number of decision in Air India v. Nagresh Meerza,

AIR 1981 SC 1829: 1982(1) SCR 438: 1981(4) SCC 335: 1981(2) SLJ 349: 1981 Lab

IC 1313: 1982(1) SLR 117, it was held well established that Article 14 is certainly

attracted where equals are treated differently without any reasonable basis.

Artificial classification on the ground of sex in the matter of setting apart a

greater number of posts for being filled up by promotion by the male candidates without

any reasonable basis of such classification is unreasonable. Maya Mukherji Jha v. State

of West Bengal, 1982(2) SLR 405.

Where there is no nexus between the classification made and the object which

is sought to be achieved, such a classification is unreasonable. State of Maharashtra v.

Raj Kumar, 1982(2) SLJ 549: 1982 Lab IC 1597: AIR 1982 SC 1301: 1982(3) SCC 313.


Every discrimination or classification will not offend Article 14 of the

Constitution. It is only an unreasonable discrimination which is liable to be struck

down. G.K. Nayar v. Union of India, 1982(2) SLJ 636.

Concept of equality has an inherent limitation arising from very nature of the

guarantee under the Constitution and those who are similarly circumstanced are entitled

to equal treatment. If there is a rational classification consistent with the purpose for

which such classification was made, equality is not violated. Article 16 of the

Constitution does not bar a reasonable classification of employees or reasonable tests

for selection. Equality of opportunity of employment means equality as between

members of the same class of employees and not equality between members of separate

independent class. Union of India v. IM Havildar/Cerl SC Bagari (No. 664950), AIR

1999 SC 1412: 1999 JT(3) 124: 1999 Lab IC 1561: 1999(2) SLR 775 (SC).

50. Reservation for Children of Bank Employees — Reservation for children

of employees of the bank (Central Bank of India) is unconstitutional. It violates Article

16 of the Constitution, being based only on descent. The Central Bank falls within the

definition of “State”. A.K. Saha v. Central Bank of India, 1983(1) SLR 8 (Cal)

following Chitra Ghosh (Kumari) v. Union of India, AIR 1970 SC 35: 1970(1) SCR

413: 1969(2) SCC 228: 1970(1) SCJ 240 and Anjali Roy v. State of West Bengal, AIR

1952 Cal 325.

51. Appointment, Infraction of Rules — If the appointment itself is in

infraction of the rules or if it is violation of the provisions of the constitution, illegality

cannot be regularised. R.N. Nanjundappa v. T. Thimmiah, 1973(2) SCJ 265: 1972 SLR

94: AIR 1972 SC 1767: 1971(3) SCC 767: 1972 Crl LJ 828.

Certain persons were appointed as Naib Tehsildars in the Punjab. Their

appointments were found not to be in order (as the appointing power vested only in the

Commissioner and not in the Department Promotion Committee). However they had

been in service for 7 years and had never become overage for Government Service. The

Division Bench set aside the Single Judge”s order quashing the appointment. Gurbux

Rai Sood v. State of Punjab, 1984(1) SLR 83 P&H (DB).

52. Appointment Without Rules — Government can create posts, but must

make rules laying down qualifications. Balakrishna Pillai v. State of Kerala, 1983(3)

SLR 492 (Ker).

53. Appointment in Violation of Select List — Mere inclusion of name in a

select list as such confers no title to appointment. It is one thing to say that inclusion in

a list cannot or does not confer a right or title to appointment; but it is a far cry there

from to state that the appointing authority has the right to pick and choose the persons

from the ranked list as it pleases. The selected persons would be entitled to be

appointed in accordance with the rank list in their usual chance and turn for

appointment, if and when it arises from out of list as long as appointments are made

from the said list. P. Nalini v. Divisional Manager, 1978(1) SLR 623. The Department

is not expected to concern itself, whether the select list has become time barred. S.

Jeevadas v. State of Kerala, 1978(2) SLR 590.


It is well settled that in making appointments the Government should not act

arbitrarily. If the Government does not make any appointment, no candidate can insist

on such appointments being made merely because he has been selected for one of the

posts. The Government may not appoint all the candidates selected for such

appointments or fill up all the vacancies, but in filling up the vacancies the Government

cannot act arbitrarily. The appointments must be made in order of the rank in the list. If

Government does not choose to appoint a candidate whose rank is higher in the list than

one who has been appointed, such action of the Government must be justified with

reasonable grounds. The Court is entitled to know the reasons which prompted the

Government to appoint a less meritorious candidate in preference to another more

meritorious one. If there is no reasonable ground for the exercise of such discretion, the

Court will at once intervene and strike down the action of the Government as violative

of Article 14 and 16(1) of the Constitution. A fair play in action on the part of the

Government is postulated in all executive acts including the employment to State

services. State of West Bengal v. Tapan Kumar Sen, 1982 Lab IC 303: 1982(1)

SLR 584.

54. Appointment for Political Objects — It will be an abuse of the executive

powers of the State, if posts are created in public service and appointments are made

thereto, for achieving political objects or on considerations which are extraneous made

irrelevant to the object for which the power is vested in the State. K.M. Joseph v. State

of Kerala, AIR 1968 Ker 244.

55. Whole Thing Completed in Haste in one day in absence of Secretary — Regular Secretary was on leave who was on Departmental Promotion Committee.

Principal Secretary to the Chief Minister was appointed additionally as Secretary.

Whole thing was completed in haste in one day. This suggests that some higher up was

interested in pushing through the matter hastily when Secretary of Department was on

leave. Held, matter requires to be considered afresh. S.P. Kapoor v. State of Himachal

Pradesh, AIR 1981 SC 2181: 1982(1) SCR 1043: 1981(4) SCC 716: 1982 Lab IC 9:

1981(3) SLR 220.

56. Consideration of Extraneous Matters — When consideration, extraneous

to the suitability of a person for appointment are taken into account in making an

appointment there is an abuse of discretionary power and so the exercise of power

exceeds the bounds of authority. While the fitness of a person to an office may be

solely within the discretion of the appointing authority, the discretion must be exercised

bona fide. A. Mohambaram v. M.A. Jayavelu, AIR 1970 Madras 64.

57. Membership of Political Party in Power: No Disqualification for

Appointment — The fact that an aspirant for office happens to be an active member of

a political party in power by itself should not and cannot disqualify him if otherwise

suitable for being appointed to a post. A. Mohambaram v. M.A. Jayavelu, AIR 1970

Madras 64.

58. Political convictions or affiliations no bar for Public Employment —

The freedom of association entitles a citizen to join any party or association,

notwithstanding its political colour or programme, so long as that party or organisation

is not banned or declared illegal by law. A citizen who is otherwise found fit for public


employment cannot be discriminated or priced out of employment market because of

his political convictions or affiliations. Of course, once he enters into the service, he

would be bound by and governed by the rules and the Code of conduct obtaining in that

service and cannot act contrary to them. But at the stage of seeking employment he

cannot be disqualified because of his political conviction or affiliation. Kalluri

Vassayya v. Superintendent of Post Office, 1980(2) SLR 433: 1982 Lab IC 1143.

59. Termination on Police Report — Termination of service found on a police

report, that the employee was not a fit person to be entertained in Government service

as he had taken part in R.S.S. and Jan Sangh activities is illegal. Termination cannot be

done on the basis of past political activities. The order is penal in character and violates

Articles 14, 16 and 311 of the Constitution. State of M.P. v. Ramashankar Raghuvanshi,

1983(2) SCR 393: 1983(1) SLR 575 (SC) (Freedom of Speech discussed). See also Coir

Board, Ernakulam, Cochin v. Indira Devi, 1998(1) SLJ 405. For compulsory retirement

in public interest see State of Madhya Pradesh v. Indra Sen Jain, 1998(1) SLJ 305.

See also George Mathew v. Union of India, 1990(3) SLR 407, 408 (CAT

Bombay). For termination by incompetent authority see Santosh Jain v. State of Punjab,

1985(2) SLR 330 P&H.

60. Citizen be heard before he is debarred from Employment or

Appointment — A citizen shall not be debarred from being considered for employment

or appointment to an office under the State by an ex parte finding arrived at against him

by a functionary of the State that he has been found dishonest and as such the door of

such employment or appointment shall remain shut on his face. Before the door is

slammed against him he has a right to be heard. M.K. Mathulla v. N.N. Wanchoo, AIR

1970 Delhi 195: 1970 DLT 379 (DB).

61. Ad hoc appointment, What it is — The expression “ad hoc” in its true

meaning would mean “stop gap”. Ad hoc appointment is for a particular purpose and as

soon as the purpose is achieved the person holding the appointment can be reverted or

his services could be terminated. K.K. Vij v. Government of H.P., 1970 SLR 8;

Narendra Bahadur Srivastava v. Public Service Commission, U.P., 1970 ALJ 1337:

1971(2) SLR 414; Bansi Ram Sharma v. State of H.P., 1974(1) SLR 358; S.P. Vasudeva

v. State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1976

SLJ 271: 1975 Lab IC 1748: 1975(2) SLR 740; Pooswamy, M. v. Union of India, 1978

SLJ 297: 1978(2) SLR 334; S.K. Verma v. State of Punjab, 1979(2) SLR 164: 1979 SLJ

477 (FB); Lashkar Singh v. Municipal Corporation of Delhi, 1978 SLJ 695: 1979(1)

SLR 233; Bishundeo Mahto v. State of Bihar, 1981(3) SLR 467 (FB).

See also Virendra Singh Malik v. Haryana State Remote Sensing Application

Centre, 1994(5) SLR 526 (P&H); Gordhan Gulia v. State of Haryana, 1997(1) SLR

353; Bovaiah v. District Co-operative Central Bank Ltd., Sangareddy, 1998(1) SLR 276

(AP) (DB).

62. Ad hoc Appointment, When Can be Made — If an appointment is made

for a particular end or purpose at hand and without reference to wider application or

employment, it would ad hoc appointment. So where there is a leave or other temporary

vacancy, it is quite permissible for the appointing authority to make ad hoc appointment


for the particular purpose of filling it, so long as that appointment is otherwise,

unexceptionable. Such ad hoc appointments are often made where there are no service

rules to guide and control the discretion of the appointing authority. It may also be that

the service rules may themselves provide for the making of ad hoc appointments. But

where a service rule provides for the filling of a temporary vacancy, that rule will

govern the discretion of the appointing authority and will prevail. It may be that while

making the appointment under the service rules the appointing authority may as a

matter of abundant caution, characterise it as ad hoc, but it is not possible for that

authority to disregard the rule altogether and take the stand that it is not bound by it. To

put it more plainly, it is not permissible for the appointing authority in such a case to

say that it can make an ad hoc appointment simply for the particular end or purpose of

giving the employment to a particular person. Swayamber Prasad Sudrama v. State of

Rajasthan, AIR 1972 Raj 69: 1971(2) SLR 767.

An ad hoc appointment required to be made “immediately” in the public

interest may be made dispensing with reference to the public service commission.

However, if a candidate already in judicial service is to be appointed, obviously his

services shall have to be spared by the High Court falling which he cannot be appointed

even ad hoc. A post which has been sanctioned for, or is likely to last for, more than

four months has to be filled up by making appointment on regular basis in consultation

with the public service commission. If the person chosen for such appointment is a

judicial officer, he cannot be appointed without consulting the High Court, such

consultation being mandatory. Gauhati High Court v. Kuladhar Phukan, 2002(3) JT

412: 2002(3) SLR

257 (SC).

(i) Ad hoc Appointment for a Fixed Period Without Consultation with

Public Service Commission — See Allied Service Matters — Public Service

Commission.

63. Ad hoc Appointment/Promotion: All Eligible Persons be Considered — The case of all eligible candidates must be considered for promotion even if the

appointment or promotion is to be made on ad hoc basis. Gordhan Lal v. S.K. Durgia,

1977 SLJ 131: 1977(1) SLR 531. Promotion purely on ad hoc basis was made on the

recommendations of the Departmental Promotion Committee which did not consider the

case of petitioner. Promotion of respondent quashed. Hari Singh v. State of H.P.,

1981(1) SLR 330.

Any promotions made wrongly in excess of any quota are to be treated as ad

hoc. This applies to reservation quota as much as it applies to direct recruits and

promotee cases. If a Court decides that in order only to remove hardship such roster

point promotees are not to face reversions, then it would in our opinion be, necessary to

hold - consistent without interpretation of Articles 14 and 16(1) - that such promotees

can not plead for grant of any additional benefit of seniority flowing from a wrong

application of the roster. In our view, while Courts can relieve immediate hardship

arising out of a past illegality, Court cannot grant additional benefits like seniority

which have no element of immediate hardship. Ajit Singh v. State of Punjab, AIR 1999


SC 3471: 1999(7) SCC 209: 1999(7) JT 153: 1999(7) SLT 476: 1999 Lab IC 3128:

1999(4) LLN652: 1999(5) SLR 268.

Appointment on ad-hoc basis clearly stipulating that the ad hoc service shall

not be counted towards seniority. Subsequent claim of selection grade by including the

service referred on ad hoc basis in the past service is not proper. Held that service of

employees commenced on regular appointment after selection of UPSC and not earlier.

State of Haryana v. Haryana Veterinary & A.H.T.S. Asson., AIR 2000 SC 3020:

2000(8) SCC 4: 2000(10) JT 561: 2000 Lab IC 3127: 2000(4) LLN 588: 2000(5) SLR

223 (SC).

64. Ad hoc Appointment does not vest Right to Hold Post — Ad hoc

appointee or promotee has no right to the post because by its very nature it is a stop gap

arrangement until a regular appointment or promotion is made and therefore, in that

sense the incumbent holds a very precarious tenure and would, therefore, be liable to be

reverted to make room for a regular appointee or promotee, pending which appointment

or promotion, the ad hoc arrangement was resorted to. M. Venkat Swamy v. Government

of A.P., 1972 SLR 249; Pooswamy, M. v. Union of India, 1978 SLJ 297: 1978(2) SLR

334; Dalpratap Singh v. State of M.P., 1980(1) SLR 19; Bishundeo Mahto v. State of

Bihar, 1981(3) SLR 467.

An ad hoc appointee is not endowed with any right whatsoever. Andesanand

Jha v. State of Bihar, 1982 Lab IC 1842.

Promotion on a higher post on ad hoc basis when sent on deputation and

continued to function on that post on ad hoc basis for a very long time would not vest in

them a right of regularisation in the department where he is on deputation. They can

under the rules claim regularisation on a post on their parent division/office. Thus, they

are only entitled to regularisation on their turn in the parent division/office strictly in

accordance with the rules and instruction on the subject. Durbeen Singh v. Union of

India, 2002(3) SLR 611 Raj (DB).

65. Ad hoc Appointment does not Confer any right to claim Such Post or Seniority on that Account — Jiwan Lal v. State of H.P., 1980(2) SLR 799; A.V.

Sharma v. State of H.P., 1979 SLJ 642: 1981(1) SCR 359.

66. Ad hoc Appointment, Place of Promotees — Where ad hoc appointments

are made pending the filling up of posts through Union Public Service Commission the

placing of direct recruits over the promotees does not contravene Article 14. G.D.

Kelkar v. Chief Controller, Imports, 1967(1) SCWR 961: AIR 1967 SC 839: 1967(2)

SCR 29.

67. Ad hoc Appointment or Promotion: (i) Reversion — An ad hoc

appointment or promotion continues to be ad hoc and temporary even though the

petitioners were allowed to continue in them. Their reversion or discharge would not

amount to dismissal, removal or reduction in rank within the meaning of Article 311(2).

H.L. Radhey v. Delhi Administration, AIR 1969 Delhi 246; H.B. Vashishtha v. Union of

India, 1973 SLJ 921; Posswamy M. v. Union of India, 1978 SLJ 297: 1978(2) SLR 334.


Petitioners were promoted on ad hoc basis subject to the approval of

Commission. Commission refused to give its approval. Reversion valid. B.S. Bansal v.

State of Punjab, 1978(2) SLR 553: 1979 SLJ 67. Petitioners were promoted on ad hoc

basis but were reverted for not passing departmental examination. Reversion was

proper. State of Gujarat v. M.A. Kadri, 1979(2) SLR 31. Incumbent of the post had

been suspended and petitioner was promoted on ad hoc basis till the decision of the

suspension case. Holder of post was exonerated and the petitioners was reverted to his

original post. Amar Nath Gupta v. State of H.P., 1979(2) SLR 44.

It is beyond doubt that even though an ad hoc appointee has no right to hold

that post to which he is so appointed, he can nevertheless be reverted to his lower

substantive position only for valid reasons such as his misfit state to hold the post, the

availability of the person holding a lien on the post, selection of a regular incumbent or

other exigencies of public service. An ad hoc appointee cannot, therefore, be reverted

without any rhyme or reason. An ad hoc appointment, though by its nature a precarious

tenure, nevertheless carries a limited right to that extent and if such an appointee is

reverted without a valid reason, he would be entitled to challenge it and seek an

enforcement of the right. Kuldeep Chand Sharma v. Delhi Administration, 1978 SLJ

461: 1978(2) SLR 379.

Where the ad hoc promotee was reverted and juniors to him were retained, the

order was held violative of Article 16. Arun Kumar v. Union of India, 1976 SLJ 163;

R.X.A. de Monte Furtado v. Administrator of Goa, 1982(2) SLJ 103: AIR 1982 Goa 34.

The petitioner was appointed on ad hoc basis and held various posts. He was

reverted to his substantive post and on the same day he was placed under suspension

with immediate effect. Held, the reversion amounts to reduction in rank, under the

circumstances of the case. Since this reduction was done without the procedural

safeguards of Article 311(2) of the Constitution having been followed and is, as such

invalid. R.X.A. de Monte Furtado v. Administrator of Goa, 1982(2) SLJ 103: AIR 1982

Goa 34.

(ii) Compulsory Retirement — An officiating or ad hoc charge that a

permanent civil servant may have a post would not determine the liability to being

considered for premature retirement. If he is retired from service to which he belongs,

he ceases to be in service and the ad hoc appointment that he may hold falls within it.

K.R. Tahiliani v. Union of India, 1978(1) SLR 815.

For compulsory retirement in public interest see State of Madhya Pradesh v.

Indra Sen Jain, 1998(1) SCJ 305. For refusal of counting of previous qualifying service

for grant of retirement benefits see Union of India v. Dr. S. Baliar Singh, 1998(1)

SCJ 348.

(iii) Termination of Service — Where the services of an ad hoc employee are

not being governed by statute of service rules his services can be terminated in

accordance with his letter of appointment. S.K. Verma v. State of Punjab, 1979 SLJ

477: 1979(2) SLR 164 (FB). The services of an ad hoc employee can be terminated in

accordance with the terms of his employment without any prior notice and not


necessarily for a valid justification only. Om Parkash Sharma v. State of Haryana,

1981(1) SLR 314: 1982 Lab IC 501.

If a screening was made by the authority concerned for the purpose of deciding

the question of further retention in service and it was found on such screening that it

was not desirable to continue the petitioner in further employment, then it can only be

said that termination was a discharge, simpliciter, the order being a simple order of

discharge without casting any aspersion or attaching any stigma to his character. The

unsatisfactory work of the petitioner may only be the motive for terminating his

services but was not the basis for the same. Dr. B.K. Gupta v. Union of India, 1978(1)

SLR 312.

Where services of an ad hoc appointee were terminated and juniors to her were

retained, the termination order was set aside. Rupinder Kaur v. Secretary to

Government of Punjab, 1980(1) SLR 710.

68. Ad hoc appointment: Ad hocist has no right either of Seniority or

Otherwise on the Post — An ad hocist has got no right either of seniority or otherwise

on the post on which his ad hoc appointment is made and his right to that post begins or

comes into existence only from the date on which his services are regularised. It is not

open to him to claim the benefit of the services on the post on which he has served

merely as an ad hocist. A.V. Sharma v. State of H.P., 1979 SLJ 642: 1981(1) SCR 359.

When the period of ad hoc appointment is short and the appointment is not

made in accordance with the rules prescribed for the purpose the said period of ad hoc

appointment cannot be taken into account for considering the seniority. Pushpa Arya v.

Director of A.I.I.M.S., 2001(4) SLR 621 Delhi: 2001(6) AD(Delhi) 890: 2001(94)

DLT 60.

69. Officiating and Substantive, Meaning of — In ordinary sense of the

words in the context of service, “to officiate” is to “perform the duties of an office”,

and substantive means “permanent”. Substantive service, therefore, means service as a

permanent holder of an office, and in contradistinction, officiating service means

“service rendered as a non-permanent holder”. Service which is not substantive is

officiating. P.C. Unhikrishnan Nambiar v. State of Kerala, AIR 1965 Ker 84; Jugraj

Singh v. State of Punjab, 1969 SLR 622 (FB): 1970 Lab IC 535. For detailed discussion

see Ajudhia Nath Dhingra v. Union of India, 1975(2) SLR 230: 1976 SLJ 357 (FB);

Laskher Singh v. Municipal Corporation of Delhi, 1978 SLJ 695: 1979 SLR 233.

A person is said to hold a post in a substantive capacity when he holds it for an

indefinite period specially of long duration in contradistinction to a person who holds it

for a definite or temporary period or holds it on probation subject to confirmation.

Baleshwar Dass v. State of U.P., AIR 1981 SC 41: 1981(1) SCR 449: 1980(4) SCC

226: 1980 Lab IC 1155: 1981(1) SCJ 421: 1980(3) SLR 422: 1981(1) SLJ 223 (SC): In

this case the Supreme Court also held that merely because a person is a temporary

appointee, it cannot be said that he is not substantively appointed if he fulfils the

necessary conditions for regular appointment. Kamla Prasad v. State of Bihar, 1981(3)

SLR 717.


Even in cases of probation or officiating appointments which are followed by a

confirmation unless a contrary rule is shown, the service rendered as officiating

appointment or on probation cannot be ignored for reckoning the length of continuous

officiating service for determining the place in the seniority list. Where the first

appointment is made by not following the prescribed procedure and such appointee is

approved later on, the approval would mean his confirmation by the authority shall

relate back to the date on which his appointment was made and the entire service will

have to be computed in reckoning the seniority according to the length of continuous

offciation. G.P. Doval v. Chief Secretary, Government of U.P., 1984(4) SCC 329:

1984(2) SLR 555 (SC) relying upon L. Chandrakishore Singh v. State of Manipur, AIR

1999 SC 3616: 1999(8) SCC 287: 1999(7) JT 576: 1999 Lab IC 3543: 1999(4) LLN

1159: 1999(83) FLR 770: 1999(3) SLR 652: 1999(5) SLR 538: 1999(3) SCJ 526:

2000(2) SLJ 4.

70. Appointment: Part Time — If a Government servant is appointed “part

time” against a permanent post without any qualification or reservation, his

appointment is to be considered permanent for only hours of work and has nothing to do

with the nature of appointment. He cannot be removed arbitrarily. Gurdarshan Singh

Grewal v. State of Punjab, 1983(1) SLR 570 (P&H) following State of Assam v. Kanak

Chandra Dutt, 1967(1) SCR 679: AIR 1967 SC 884: 1968(1) LLJ 288: 1967(14) FLR

299: 1967(1) SCWR 228: 1967 SCD 521: 1967(2) SCJ 461.

71. Appointment: Excluded Post — Under the Punjab Service of Engineers,

Class I (B&R) Rules, 1960 a transfer (to a cadre post) having a lien on an excluded post

becomes a member of the service only from the date of his substantive appointment to

the cadre post in the service. Raja Ram Sheoram v. State of Haryana, 1984(2) SLR 675:

1984(2) SLJ 254 (P&H) (DB) following M.S. Miglani v. State of Haryana, 1983(1)

SLR 423.

72. Appointment, Void — Appointment of lecturer without approval of the

concerned authority under Section 16F, U.P. Intermediate Education Act, 1921 is void.

Premwati Nautiyal v. Narendra Mahila Vidyapith, 1984(3) SLR 291, 297, 298 para 6

(All). See also K.M. Agrahare v. Chief Secretary, Delhi Admn., 1989(3) SLR 357 (CAT

New Delhi).

73. Appointment Until Further Orders — An appointment which is regular

on probation basis cannot be regarded as temporary. Where the appointment order

mentioned it as “Appointment on regular basis until further orders” the words “until

further orders” are irrelevant and are to be ignored. 1985(2) SLJ 680: 1985 SLR 204,

209 para 7 and 8 (SC).

74. Substantive Appointment to a Permanent Post — A substantive

appointment to a permanent post need not necessarily mean a permanent appointed post

though it would be presumed to be so unless stated to the contrary. The appointment of

a person as a probationer can be said to be a substantive appointment to a permanent

post but it would not be presumed to be a permanent appointment to a permanent post

in as much as the services of such a person can be terminated during the period of

probation. Jiwan Das v. Municipal Corporation of Delhi, 1971(2) SLR 277 (Delhi):

1971 Lab IC 795; Ajudhia Nath Dhingra v. Union of India, 1975(2) SLR 230: 1976 SLJ


357 (FB); Lashker Singh v. Municipal Corporation of Delhi, 1978 SLJ 695: 1979(1)

SLR 233.

75. Permanent appointment and appointment on probation, distinction between — Though both the appointments may be made substantively to a permanent

post, the permanent appointee gets a title or a right to hold a post but the probationer

does not get such a right. Jiwan Das v. Municipal Corporation of Delhi, 1971(2) SLR

277 Delhi: 1971 Lab IC 795; Ajudhia Nath Dhingra v. Union of India, 1975(2) SLR

230: 1976 SLJ 357 (FB).

The very fact that a person is a probationer implies that he has to prove his

worth and suitability for the higher post in which he is officiating. If his work is not

found to be satisfactory, he is liable to be reverted to his original post even without

assigning any reason. High Court of Madhya Pradesh through Registrar v. Satya

Narayan Jhavar, AIR 2001 SC 3234: 2001(7) SCC 161: 2001(6) JT 368: 2001 Lab IC

3281: 2002(1) BLJR 450: 2001(91) FLR 626: 2002(1) JLJR 40: 2002(1) Jab LJ 103:

2002(1) Pat LJR 25: 2001 SCC (L&S) 1087: 2001(3) SCJ 135: 2001(3) SLR 645.

76. Post Likely to Continue — Where in the advertisement of the post it was

stated that the post “likely to continue” after………, it was no assurance that the post

would be made permanent. Kedar Nath Bahal v. State of Punjab, 1973(1) SCJ 95: AIR

1972 SC 873: 1972 SLR 320.

77. Officiating or Temporary, Difference in — There is a little difference in

officiating and temporary appointment. Ram Chandra Chaudhuri v. Secretary to

Government of West Bengal, AIR 1964 Cal 265; Parshottam Lal Dhingra v. Union of

India, 1958 SCJ 217: AIR 1958 SC 36: 1958 SCR 828.

78. Temporary or Regular — Mere language of the order of appointment is

not the sole guiding factor to determine whether the appointment is temporary or

regular. The circumstances of the case at the time of appointment and subsequently

should be taken into consideration. J.J.Muralidhara Rao v. State of A.P., 1971(1) SLR

523. For full discussion please see Lashkar Singh v. Municipal Corporation of Delhi,

1979(1) SLR 233: 1978 SLJ 695.

79. Temporary Substantive Appointee Does Not Become Permanent if Post

Declared Permanent — The mere fact that a person who is appointed in a substantive

capacity to a temporary post does not become permanent if the post is declared to be

permanent unless he gets that capacity either under some rule or he is declared or

appointed by the Government as a permanent Government servant. Director of

Panchayat Raj v. Babu Singh, 1973(2) SCJ 577: AIR 1972 SC 420; State of U.P., v.

Nand Kishore Tandon, AIR 1977 SC 1267: 1976(4) SCC 823: 1977 Lab IC 838. See

also P.K. Mary v. Director, I.C.A.R., 1990(6) SLR 322 (CAT Ernakulam); Harinder

Sharma v. State of Punjab, 1998(1) SLR 361 P&H (DB); State of Tamil Nadu v. E.

Pariporranam, 1991(3) SCR 618: 1992(1) SCC Supp 420: AIR 1992 SC 1823: 1992

Lab IC 1803: 1992(19) ATC 653: 1992(6) SLR 730: 1992 AIR SCW 2057.

80. Temporary Post Can Be Held Substantively — Temporary post can be

held substantively but it does not make the post substantive. Parshottam Lal Dhingra v.

Union of India, 1958 SCJ 217: AIR 1958 SC 36: 1958(1) LLJ 544; Rattan Lal Gulati v.


Union of India, AIR 1955 Punjab 229; V.P. Rehbar v. Punjab State, AIR 1965 Punjab

94; Jugraj Singh v. State of Punjab, 1970 Lab IC 535: 1969 SLR 622 (FB); Baleshwar

Dass v. State of U.P., AIR 1981 SC 41: 1981(1) SCR 449: 1980(4) SCC 226: 1981(1)

SCJ 421: 1981(1) SLJ 233: 1980(3) SLR 422 (SC); Bishundeo Mahto v. State of Bihar,

1981(3) SLR 467; Kamla Prasad v. State of Bihar, 1981(3) SLR 717.

81. Disqualification on Ground of Sex — (i) Disqualification of married

women from being eligible for appointment as District Judge on the ground of sex is

violative of Article 14. Radha Charan Patnaik v. State of Orissa, 1969 SLR 565: AIR

1969 Ori 237.

(ii) Making women ineligible to posts in men”s jails other than those of clerks

and matrons is not discriminatory on grounds of sex alone. Mrs. Raghubans Saudagar

Singh v. State of Punjab, 1971(1)SLR 688: AIR 1972 Punjab 117.

(iii) “We do not mean to universalise or dogmatise that men and women are

equal in all occupations and all situations and do not exclude the need to pragmatise

where the requirements of particular employment, the sensitivities of sex or the

peculiarities of societal sectors or the handicaps of either sex may compel selectivity.

But save where the differentiation is demonstrable, the rule of equality must govern”.

Miss C.B. Muthamma v. Union of India, AIR 1979 SC 1868: 1980(1) SCR 668: 1979(4)

SCC 260: 1979 Lab IC 1307: 1979 SLJ 654; Maya Mukherji Jha v. State of West

Bengal, 1982(2) SLR 505.

(iv) To become a mother is the most natural phenomena in the life of a woman.

Whatever is needed to facilitate the birth of child to a woman who is in service, the

employer has to be considerate and sympathetic towards her and must realise the

physical difficulties which a working woman would face in performing her duties at the

work place while carrying a baby in the womb or while rearing up the child after birth.

The Maternity Benefit Act, 1961 aims to provide all these facilities to a working

woman in a dignified manner so that she may overcome the state of motherhood

honourably, peaceably, undeterred by the fear of being victimised for forced absence

during the pre or postnatal period. Municipal Corporation of Delhi v. Female Workers

(Muster Roll), AIR 2000 SC 1274: 2000(3) SCC 224: 2000(3) JT 13: 2000 Lab IC

1033: 2000(2) SLR 2 (SC).

In another case the appointment was denied to a female candidate on the

ground that she has a child less than 3 years of age. It was held that such denial is

discriminatory as it is for the candidate to make arrangement for the child. Sumitra

Singh v. State of Rajasthan, 2002(2) SLR 594 Raj.

[Also see Reservation of seats or posts for women].

82. Age-limit for Appointment to a Post — It is for the Government to make

the policy about the appointment to a particular post. If the Government thinks that a

person for being appointed as Principal of State Medical College should be between the

age of 45 and 50 years it cannot be said that the Government has acted arbitrarily in the

making of that policy, because age cannot be deemed to be an irrelevant factor for such

a post. Dr. S.S. Misra v. State of U.P., 1974 ALJ 427; Radha Charan Patnaik v. State of

Orissa, 1969 SLR 565: AIR 1969 Ori 237.


See also A.P. Public Service Commission v. Satyachandra, 1990(13) ATC 708

(SC); N.T. Devin Kutty v. Karnataka Public Service Commission, 1990(14) ATC

688 (SC).

83. Appointment without Consultation with Public Service Commission not

invalid — It is well settled that in respect of the provisions of Article 320 of the

Constitution appointment without consultation with the Public Service Commission

does not make the appointment invalid or void. State of U.P. v. Manbodhan Lal, 1958

SCJ 150: AIR 1957 SC 912: 1958 SCR 533: 1958(2) LLJ 273; Ram Gopal Chaturvedi

v. State of M.P., AIR 1970 SC 158: 1970(1) SCR 472: 1969(2) SCC 240: 1969 429:

1970(1) LLJ 367: 1970(1) SCJ 457; Rabindra Nath Mukherjee v. S.R. Das, 1980 SLJ

67; J.M.J.S. Alexandre Gonsalves Pereira v. Administrator of Goa, 1982(2) SLJ 132.

The recruitment rules made under Article 309 of the constitution have to be

followed strictly and not in breach. If a disregard of the rules and the by-passing of the

Public Service Commission is permitted, it will open a back door for illegal recruitment

without limit. Anuradha Bodi v. Municipal Corporation of Delhi, 1998(5) SCC 293:

AIR 1998 SC 2093: 1998(3) JT 757: 1998(4) SLR 359: 1999(1) SLJ 1: 1999(1) LLJ

560: 1998 Lab IC 1911.

84. Appointment, effect of approval by Public Service Commission — Once

the Public Service Commission conveys its approval, it dates back to the date of

appointment of the officer concerned, it he has continued in the promoted rank from the

date of his promotion, without a break. H.P. Sood v. State of Punjab, 1970 Cur LJ 379:

1970 SLR 483.

85. Appointment by authority not competent to make Appointment — If a

person is appointed by an authority who is not competent to make appointment, such a

person cannot claim the benefit of Article 311 on his removal from service. Narayan

Das v. Deputy Commissioner, AIR 1970 Assam 57.

The appointment by an authority not competent to make it was invalid and

incapable of being validated by subsequent ratification. Ratification can be made by the

competent authority only by an independent order which will take effect from the date

of order. State of Kerala v. K.P. Krishnan, 1978(1) SLR 331.

The appointment was made by the Commandant General even though rule

conferred power on the Provincial Government to make such appointments. Therefore,

Commandant General had the power to dismiss the appellant. The dismissal order

would not be void on the ground that it is made by an authority lower than the

appointing authority. Ramanand Singh v. State of Bihar, 1982(1) SCC 214: AIR 1982

SC 1394: 1982(1) SLR 693: 1982 BLJ 395: 1982 BLJR 438: 1982 Pat LJR (SC) 55:

1982(2) SCWR 209: 1982(14) Lawyer 58. See also State Bank of India, Hyderabad v.

Ch. Hanumantha Rao, 1988(4) SLR 903 AP.

86. Appointment by higher authority — Appointing authority — Appointment made by higher authority. Order of removal passed by invalid.

Chandrasen Sharma v. Superintending Engineer, AIR 1966 All 232; N. Somasundaram

v. State of Madras, AIR 1956 Mad 419; Bachubha Ramsinh ji v. Shri Shivlal, AIR 1970

Guj 180.


87. Appointment on Probation or on Officiating Basis is Terminable — The

law is well settled now that the appointment either on probation or on officiating basis

is from the very nature of such employment itself of a very transitory character and in

the absence of any special contract or specific rule regulating the conditions of service,

the implied term of such appointment, under the ordinary law of master and servant, is

that it is terminable at any time. State of Assam v. Biraja Mohan Deb, 1969(II) SCWR

583; Purshottam Lal Dhingra v. Union of India, 1958 SCJ 217: 1958 SCR 828: AIR

1958 SC 36; Life Insurance Corporation of India v. Raghavendra Seshagiri Rao

Kulkarni, AIR 1998 SC 327: 1997(8) SCC 461: 1997(77) FLR 782: 1997(5) SLR 774:

1998(2) LLJ 1161: 1998 Lab IC 411: 1998(1) LLN 56: 1998(92) FJR 25.

88. Date of Appointment — Date of appointment means the date of assuming

duties of the post and not the date of the order. Amarjit Singh v. State of Punjab, 1969

Cur LJ 918; Raghuvir Lal Sehgal v. Haryana State Electricity Board, 1971(1) SLR 157.

An order of appointment may be of three kinds. It may appoint a person with

effect from the date he assumes charge of the post or it may appoint him with

immediate effect or it may appoint him simpliciter without saying as to when the

appointment shall take effect. Where the order of appointment is of the first kind, the

appointment would be effective only when the person appointed assumes charge of the

post and that would be the date of his appointment. It would be then that he is

appointed. But in case of the second kind, the appointment would be effective

immediately irrespective as to when the person appointed assumes charge of the post.

The date of his appointment in such a case would be the same as the date of the order of

appointment. Amarjit Singh Ahluwalia v. State of Punjab, AIR 1975 SC 984: 1975(3)

SCR 82: 1975(3) SCC 503: 1975 Lab IC 613: 1975 SLJ 220: 1975(1) SLR 171.

89. Appointment with a back date — It is neither in the public interest nor in

the interest of justice that an order of appointment be given effect to from a back date,

unless concerned employee, as a matter of right, was entitled to be appointed or

promoted from that date and the Government was duty bound to do so. Bal Krishan

Soni v. State of Haryana, 1982(1) SLR 373.

90. Person not eligible to consideration for appointment cannot question

the appointment — In order that mandamus may be issued to compel the authorities to

do something it must be shown that the statute imposes a legal duty and the aggrieved

party had a legal right under the statute to enforce its performance. Rai Shivendra

Bahadur v. Governing Body of the Nalanda College, 1962(2) SCJ 208: 1962(2) Supp

SCR 144: AIR 1962 SC 1270. The appellant who was not eligible for consideration for

appointment at the time, had no right to question the appointment since he was not

aggrieved. Umakant Saran v. State of Bihar, 1973(1) SCC 485: AIR 1973 SC 964: 1973

Lab IC 229:1973(1) SLR 204: 1972(2) LLJ 580: 1973 SLJ 14: 1973(1) SCWR 313.

91. Creation of Post to accommodate a Person — Under the Constitution no

post can be created just to accommodate some person howsoever prominent or

outstanding he or she may be. If there is a necessity of creating a post and manning it, it

should be thrown open to all eligible candidates after prescribing the qualifications

which the candidates aspiring to hold that post should possess. Davinder Brar nee


Sandhu v. State of Punjab, 1969 SLR 613; Salim Ahmad Chohan v. Punjab State

Electricity Board, 1971(1) SLR 55.

Another candidate is appointed in newly created post and the employee of old post

is not confirmed. Mahesh Kumar Mudgil v. State of Uttar Pradesh, 1998(1) SCJ 266.

92. Suitability for Appointment — It is the appointing authority who has to

be satisfied as to the suitability in respect of age, qualifications, work and character and

not the Court. Court cannot take the place of appointing authority. Prafulla Chandra

Bhowmik v. Union Territory of Tripura, AIR 1963 Tripura 38.

For guidelines followed by Selection Board see Siya Ram v. Union of India,

1998(1) SCJ 260. For no infirmity in selection process see Union of India v. W.S.

Chona, 1998(1) SCJ 336.

93. Oral Interview Test — In the matter of public employment, the oral

interview test should not be relied upon as an exclusive test, but it may be resorted to

only as an additional or supplementary test and, moreover, great care must be taken to

see that person who are appointed to conduct the oral interview test are men of high

integrity, calibre and qualifications. Ajay Hasia v. Khalid Mujib Saharavadi, 1980(3)

SLR 467 SC: AIR 1981 SC 487: 1981(2) SCR 79: 1981(1) SCC 722: 1981(2) SLJ 651.

See also M.P.P.S.C. v. Navnit Kumar Potdar, 1994(3) Supp SCR 665: 1994(6) SCC

293: AIR 1995 SC 77: 1994(5) SLR 273: 1995(1) SLJ 134: 1994(28) ATC 286: :

1995(1) LLJ 180.

The written examination assesses the man”s intellect and the interview tests the

man himself and the “the twain shall meet” for a proper selection. If both written

examination and interview test are to be essential features of proper selection the

question may arise as to the weight to be attached respectively to them. There cannot be

any rule of thumb regarding the precise weight to be given. It must vary from service to

service according to the requirements of the service, the minimum qualifications

prescribed, the age group from which selection is to be made, the body to which the

task of holding the interview test is proposed to be entrusted and a host of other factors.

It is not for Courts to pronounce upon it unless exaggerated weight has been given with

proven or obvious oblique motives. Lila Dhar v. State of Rajasthan, 1981(2) SLJ 266

(SC): 1981(3) SLR 56.

94. Verification of Character and Antecedents of Persons Selected for

Appointment to Public Posts — Once a fraud is detected, the appointment orders

themselves which were found to be tainted and vitiated by fraud and acts of cheating on

the part of employees, were liable to be recalled and were at least voidable at the option

of the employer concerned. If by committing fraud any employment is obtained such a

fraudulent practice cannot be permitted to be countenanced by a court of law. Union of

India v. M. Bhaskaran, AIR 1996 SC 686: 1995 Supp (4) SCC 100: 1995(5) SLR 796:

1996 SCC(L&S) 162: 1996(32) ATC 94: 1996 Lab IC 581: 1996(1) LLJ 781.

A Division Bench of Kerala High Court in George v. State of Kerala, 1963 KLJ

1155 held that it is open to the State to take into account the character and antecedents

of an applicant before he is appointed to Government service; that in assessing his

character and antecedents the State was not to proceed on arbitrary and irrelevant


considerations; and that generally, in this region of assessment the Court should not

substitute its own assessment for those of the executive, with which rests the primary

duty of appointment. Division Bench of Kerala High Court in State of Kerala v. K.A.

Balan, 1979(1) SLR 94, has held that the rule laying down that no person shall be

eligible for appointment to any service by direct recruitment unless the State

Government is satisfied that his character and antecedents are such as to qualify him for

such service does not offend Article 16 or Article 311 or the principles of natural

justice.

In Kalluri Vassaya v. Superintendent of Post Offices, 1982 Lab IC 1143:

1980(2) SLR the learned single Judge who decided the case looked into the report and

held that all the allegations contained in the said report, except the second allegation,

are irrelevant and held that having regard to the impact the report has upon the life and

career of the petitioner and his fundamental rights, and also because acting upon the

said report entails grave and serious consequences to the petitioner, it is but just and

fair that the petitioner ought to have been heard with respect to the allegations

contained in the said report before acting upon it and before denying him public

employment on that basis. He did not agree with Kerala view that petitioner had no

right to be heard with respect to the allegations received against him.

Services of the petitioner were terminated on the police verification report that

he was involved in a criminal case. Held, the order cannot be sustained as the petitioner

was not given any notice to terminate his service prior to the impugned order. Even in

cases, where there are statutory rules, it is said audi-alteram partem operates. K.

Lakshma Reddy v. Director of Postal Services, 1980 SLJ 257: 1982(1) SLR 785.

The High Court is not right in holding the order of compulsory retirement as

malafide and is in fact an order of punishment. State of Madhya Pradesh v. Indra Sen

Jain, 1998(1) SLJ 305.

95. Opportunity of hearing before cancellation of appointment— In the

case of selection of an individual if his selection is not found correct in accordance with

law, necessarily, a notice is required to be issued and opportunity be given. In a case

like mass mal-practice, the question emerges: whether the notice was required to be

issued to the persons affected and whether they needed to be heard? In answer to this

question the Supreme Court has held that nothing would become fruitful by issuance of

notice. Fabrication would obviously either be not known or no one would come forward

to bear the brunt. Under these circumstances, it was further held that the Tribunal was

right in not issuing notice to the person who are said to have been selected and given

selection and appointment. Biswa Ranjan Sahoo v. Sushanta Kumar Dinda, AIR 1996

SC 2552: 1996(5) SCC 365: 1996(6) JT 515: 1996 SCC(L&S) 1179: 1996 Lab IC 2253:

1996 (3) SLJ 62: 1996 (5) SLR 172: 1996 (2) LLJ 763: 1996 (2) LLN 863: 1996 (74)

FLR 2737.

96. Public Employment (Requirements as to Residence) Act, 1957, Section 3 Ultra Vires — The claim for supremacy of Parliament is misconceived. Parliament,

in this, as in the other matters, is supreme only in so far as the Constitution makes it.

Where the Constitution does not concede supremacy, Parliament must act within its

appointed functions and not transgress them. Section 3 of Public Employment


(Requirements as to Residence) Act, 1957, in so far as it relates to Telangana and Rule

3 of the Rules under it are ultra vires the Constitution. A.V.S. Narasimha Rao v. State

of A.P., 1970(1) SCJ 365: AIR 1970 SC 422: 1970(1) SCR 115: 1969(1) SCC 839; P.

Dharmiah v. Chief Engineer, AIR 1970 AP 236.

97. Forwarding of application to Service Commission — (i) Public Service

Commission advertised certain post. Government can refuse to forward application for

a post in another department. T.P. Mahajan v. Union of India, 1973 SLJ 818: 1973(1)

SLR 436; Son Pal v. G.M. Northern Rly., 1973(1) SLR 1085. See also Jagmohan

Sharma v. State of U.P., 1988(2) SLR 682 All (DB).

(ii) Petitioner was temporarily promoted as a Foreman purely as a stop-gap

measure. Railway Service Commission advertised the post of Foreman to be filled up.

Petitioner submitted his application through proper channel. His application was

forwarded to the Commission after last date for submission of application. Commission

did not allow petitioner to sit in the examination. Commission formed panel and

recommended the name of person to fill up the post. Administration commanded to

forbear from giving effect to the panel with liberty to proceed in accordance with law

for fresh recruitment to the said post. Narayan Fakirsa Javre v. Union of India, 1979(1)

SLR 175. For other view see Rangaswamy v. Kerala Public Service Commission,

1982(2) SLR 478: 1982 Lab IC 1684.

98. Transfer from one department to another — If a person is a member of

the service and he is transferred from one department to another it is not necessary that

he should be reappointed to the service or he should be appointed to the department to

which he is transferred. As soon as he is transferred permanently he begins to hold the

permanent post which he starts holding in the transferred department. State of U.P. v.

Ram Naresh Lal, AIR 1970 SC 1263: 1970(3) SCC 173: 1970 SLR 819: 1970 Lab IC

1063.

99. Provisions of rule 9(2) are not repugnant to the definition of appointing authority in Rule 2(a) — Om Prakash Gupta Swadheen v. Union of India, AIR 1975

SC 1265: 1976(1) SCC 594: 1975 SLJ 675: 1975 Lab IC 813: 1975(2) SLR 226.

R.10] SUSPENSION 101

PART IV

SUSPENSION R.10

10. (1) Suspension — (1) The appointing authority or any

authority to which it is subordinate or the disciplinary authority or any

other authority empowered in that behalf by the President by general or

special order, may place a Government servant under suspension —

(a) where a disciplinary proceeding against him is

contemplated or is pending; or

(aa) where, in the opinion of the authority aforesaid, he has

engaged himself in activities prejudicial to the interest of

the security of the State; or

(b) where a case against him in respect of any criminal

offence is under investigation, inquiry or trial:

Provided that, except in case of an order of suspension made by

the Comptroller and Auditor-General in regard to a member of the

Indian Audit and Accounts Service and in regard to an Assistant

Accountant-General or equivalent (other than a regular member of the

Indian Audit and Accounts Service), where the order of suspension is

made by an authority lower than the appointing authority, such authority

shall forthwith report to the appointing authority the circumstances in

which the order was made.

(2) A Government servant shall be deemed to have been placed

under suspension by an order of appointing authority —

(a) with effect from the date of his detention, if he is detained

in custody, whether on a criminal charge or otherwise, for

a period exceeding forty-eight hours;

(b) with effect from the date of his conviction, if, in the event

of a conviction for an offence, he is sentenced to a term of

imprisonment exceeding forty-eight hours and is not

forthwith dismissed or removed or compulsorily retired

consequent to such conviction.


Explanation — The period of forty-eight hours referred to in

clause (b) of this sub-rule shall be computed from the commencement of

the imprisonment after the conviction and for this purpose, intermittent

periods of imprisonment, if any, shall be taken into account.

(3) Where a penalty of dismissal, removal or compulsory

retirement from service imposed upon a Government servant under

suspension is set aside in appeal or on review under these rules and the

case is remitted for further inquiry or action or with any other directions,

the order of his suspension shall be deemed to have continued in force

on and from the date of the original order of dismissal, removal or

compulsory retirement and shall remain in force until further orders.

(4) Where a penalty of dismissal, removal or compulsory

retirement from service imposed upon a Government servant is set aside

or declared or rendered void in consequence of or by a decision of a

court of law and the disciplinary authority, on a consideration of the

circumstances of the case, decides to hold a further inquiry against him

on the allegations on which the penalty of dismissal, removal or

compulsory retirement was originally imposed, the Government servant

shall be deemed to have been placed under suspension by the

Appointing Authority from the date of the original order of dismissal,

removal or compulsory retirement and shall continue to remain under

suspension until further orders :

Provided that no such further inquiry shall be ordered unless it is

intended to meet a situation where the Court has passed an order purely

on technical grounds without going into the merits of the case.

(5) (a) An order of suspension made or deemed to have been

made under this rule shall continue to remain in force until it is modified

or revoked by the authority competent to do so.

(b) Where a Government servant is suspended or is deemed to

have been suspended, (whether in connection with any

disciplinary proceeding or otherwise), and any other

disciplinary proceeding is commenced against him during

the continuance of that suspension, the authority

competent to place him under suspension may, for reasons

to be recorded by him in writing, direct that the


Government servant shall continue to be under suspension

until the termination of all or any of such proceedings.

(c) An order of suspension made or deemed to have been

made under this rule may at any time be modified or

revoked by the authority which made or is deemed to have

made the order or by any authority to which that authority

is subordinate.

COMMENTARY

S Y N O P S I S

1. Suspension, general principle explained .......................................................................... 105

2. Suspension, kinds of ......................................................................................................... 107

3. Form of order .................................................................................................................... 107

4. Effect of Suspension ........................................................................................................ 107

5. “Suspension” and “put off”, distinction between ............................................................ 107

6. When a Government servant may be suspended or deemed to have been suspended ..... 107

7. Suspension before charges have been framed ................................................................. 108

8. Not obligatory to suspend ................................................................................................ 109

9. Suspension pending final order ........................................................................................ 109

10. Suspension pending conclusion of enquiry and refusal to permit to retire ...................... 109

11. Suspension as long as criminal trial in progress .............................................................. 109

12. Suspension pending preliminary enquiry… .................................................................... 109

13. Preliminary enquiry cannot be equated to an investigation ............................................ 109

14. Power of suspension to be sparingly exercised ............................................................... 110

15. Who can suspend a Government servant ........................................................................ 110

16. Inherent powers of suspension ....................................................................................... 110

17. Publication of regulation empowering the suspension .................................................... 111

18. Authority competent to appoint or dismiss is entitled to suspend .................................. 111

19. Delegation of power suspend .......................................................................................... 111

20. Suspension by authority other than appointing authority ............................................... 112

21. Power of head of office to suspend ................................................................................ 112

22. Suspension order to show why it has been passed .......................................................... 112

23. Suspension cannot be for indefinite period .................................................................... 112

24. Suspension under political pressure ............................................................................... 113

25. Suspension with retrospective effect .............................................................................. 113


26. Suspension is not reduction in rank ................................................................................ 113

27. Suspension no punishment ............................................................................................. 113

28. Suspension not temporary removal from service ........................................................... 114

29. Suspension order becomes effective when sent out ........................................................ 114

30. Suspension and termination of service without enquiry ................................................. 114

31. Suspension after cancelling leave preparatory to retirement .......................................... 114

32. Suspension during arrest ................................................................................................. 114

33. (i) Suspension under the sub-rule (1) when ceases .......................................................... 114

(ii) Period of suspension ................................................................................................. 115

(iii) Suspension under sub-rule (1) (b) whether ends with acquittal or discharge in

criminal case ................................................................................................................. 115

34. Suspension under sub-rule (2)(a) when ceases ............................................................... 115

35. Suspension of employee on deputation:

By lending Government ............................................................................ 116

By borrowing Government ........................................................................ 116

36. Suspension of delinquent in custody .............................................................................. 117

37. Suspension of a Government servant under U.P. Rules ................................................ 117

38. Suspension of a Government Servant under Orissa Rules............................................... 117

39. Suspension order under review (revision) proceedings .................................................. 118

40. Suspension, charge-sheet and enquiry not to be unduly delayed .................................... 118

41. Order of suspension passed under misapprehension which was revoked —

Of no consequences to mar career .......................................................................... 118

Leave while under suspension ............................................................................... 118

Lien while under suspension ................................................................................. 119

42. Promotion pending disciplinary proceedings .................................................................. 119

43. Compulsory retirement during the period of suspension ................................................ 119

44. Sub-rule (3), application of ............................................................................................ 119

45. Sub-rule (4), interpretation of ......................................................................................... 119

46. Sub-rule (4), application of ............................................................................................. 119

47. Conditions to be satisfied to attract sub-rule (4) ............................................................. 120

48. Sub-rule (5)(a), operation of ........................................................................................... 121

49. Two conditions must co-exist before action can be taken under sub-rule (5) (b) ........... 121

50. Suspension ends on dismissal, cannot be continued under sub-rule (5) (b) .................... 121

51. Suspension does not revive, if termination is quashed ................................................... 121

52. Direction to suspended employee to attend office daily and mark attendance ............... 121

53. Judicial review of suspension .......................................................................................... 122

54. Restraint on suspension by temporary injunction ............................................................ 122


SUBSISTENCE ALLOWANCE, PAYMENT OF PAY AND ALLOWANCE

55. Subsistence allowance admissible on suspension ........................................................... 122

56. Payment during suspension ............................................................................................ 123

57. Denial due to delay in proceedings ................................................................................. 123

58. Denial due to conviction ................................................................................................. 124

59. Denial under standing orders ........................................................................................... 124

60. Natural justice ................................................................................................................. 124

61. Order of dismissal set aside for non-payment of subsistence allowance ........................ 124

62. Pay and allowances on acquittal or discharge in criminal case ...................................... 125

63. Concept of “honourable acquittal” or “full exoneration” ............................................... 125

64. Order for withholding pay be passed after giving opportunity ....................................... 126

65. Speaking order to be passed ........................................................................................... 126

66. Pay of suspension period on termination of services of temporary Government servant 126

67. Limitation to claim pay of suspension, period when starts ............................................. 127

68. Suspension order, communication of ............................................................................. 127

69. Enquiry resulting in minor penalty .................................................................................. 127

70. Reinstated allegations having not been proved. Period of suspension to be treated as on

duty ....................................................................................................................................... 127

1. Suspension, General Principle Explained — When an order of suspension

is made against a Government servant pending an enquiry into his conduct, the

relationship of master and servant does not come to an end. What the Government, as

master, does in such a case is merely to suspend the Government servant from

performing the duties of his office. The Government issues a direction forbidding the

Government servant from doing the work which he was required to do under the terms

of the contract of service or the statute or rules governing his conditions of service at

the same time keeping in force the relationship of master and servant. “The employer is

regarded as issuing an order to the employee because the contract is subsisting, the

employee must obey”. It follows that the Government servant would be entitled to his

remuneration for the period of suspension unless there is some provision in the statute

or rules governing his conditions of service which provide for withholding of such

remuneration. V.P.Gindroniya v. State of M.P., AIR 1970 SC 1494: 1970(1) SCC 362:

(1970) 2 SCJ 573: 1970 SLR 329: T. Cajee v. U. Jormanik Siem, (1961) 1 SCR 750:

AIR 1961 SC 276; Balwantray Rati Lal Patel v. State of Maharashtra, AIR 1968 SC

800: 1968(2) SCR 577: 1968 SLR 593: (1968) 2 SCJ 540: (1968) 1 SCWR 964:

H.L.Mehra v. Union of India, 1974 SLJ 379: 1974 (2) SLR 187: (1974) II SCWR 302:

AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396; State of M.P. v. State of

Maharashtra, (1977) 2 SCJ 20: AIR 1977 SC 1466: 1977(2) SCR 555: 1977(2) SCC


288: 1977 Lab IC 697: 1977 (1) SLR 433. See also R.K. Mehta v. Union of India, 1993

(6) SLR 258 (CAT: New Delhi); Director, BCG Vaccine Laboratory, Madras v. S.

Pandian, 1996 (8) SLR 168 (SC): 1997(11) SCC 346: 1996(2) LLJ 634: 1996(1)

LLN 799.

When the employee is placed under suspension, he is demobilised and the

salary is also paid to him at a reduced rate under the nick name of “Subsistence

Allowance”, so that the employee may sustain himself. M. Paul Anthony (Captain) v.

Bharat Gold Mines Ltd., AIR 1999 SC 1416: 1999(3) SCC 679: 1999(2) JT 456:

1999(2) KLT 17(2): 1999(2) SLR 338 (SC): 1999 Lab IC 1565: 1999(2) LLN 640:

1999(82) FLR 627: 1999(95) FJR 1: 1999(2) SCJ 358: 1999(3) SLJ 152.

An order of suspension of a government servant does not put an end to his

service under the Government. He continues to be a member of the service in spite of

the order of suspension. O.P. Gupta v. Union of India, 1987(4) SCC 328: 1987(5) SLR

288 (SC). The suspended employee continues to be a member of the government service

but is not permitted to work and further during the period of suspension he is paid only

some allowance generally called subsistence allowance -which is normally less than the

salary instead of the pay and allowances he would have been entitled to if he had not

been suspended. Khem Chand v. Union of India, 1958 SCR 1080: AIR 1958 SC 300

The investigation mentioned in rule 10(1)(b) CCS (CC&A) Rules, 1965 means

investigation into a criminal case. Ram Kanwar v. Union of India, (1988) 7 SLR 363

(CAT Delhi).

The employee is convicted in the criminal charge and later on he was acquitted.

The suspension is held by court as unjustified. The court ordered for full pay and

allowances for the period of suspension R.K. Mehta v. Union of India, 1993 (6) SLR

258 (CAT New Delhi).

During the period of suspension a Government servant cannot be asked to

render any service or perform any duty. Chittaranjan Ghose v. IGP, W.B., 1979 (2)

SLR 194; Zonal Manager, Food Corporation of India v. Khaleel Ahmed Siddiqui, 1982

Lab IC 1140: 1982 (2) SLJ 166: 1982 (2) SLR 779.

The appellant postman was suspended for delivering the registered letter to

another person other than addressee. The charge sheet is not filed within three months

and the review of suspension is not done within six months, which should be done as

per Govt. instructions. For these reasons the continued suspension is not held illegal. G.

Yousoof v. Assistant Superintendent of Post Offices, 1994 (8) SLR 415 (CAT Mad.).

Rule 10(1)(a) of the Central Rules empowers the appointing authority to place

a Government servant under suspension if inquiry is either being conducted against him

or is contemplated against him. In the present case, a disciplinary authority had decided

to initiate the disciplinary proceeding against the respondent and pursuant to the said

decision and in exercise of the power vested in him by Rule 10(1)(a) of the Central

Rules, the respondent was kept under suspension. Therefore, the concerned authority

was well within its statutory power to keep the respondent under suspension and, the

High Court was held to be in error in finding fault with the said decision on the ground

that there was no need to keep the respondent under suspension when he is undergoing


a sentence of imprisonment. Union of India v. Sunil Kumar Sarkar, AIR 2001 SC 1092:

2001(3) SCC 414: 2001(Supp 1) JT 193: 2001(1) SLR 271 (SC): 2001 Lab IC 1114:

2001 AIR SCW 957: 2001(2) Raj LW 180: 2001 SCC (L&S) 600.

2. Suspension, Kinds of — Three kinds of suspension are known to law. A

Public servant may be suspended as a mode of punishment or he may be suspended

during the pendency of an enquiry against him, if order appointing him or statutory

provisions governing his service provide for such suspension. Lastly, he may merely be

forbidden from discharging his duties during the pendency of an enquiry against him,

which act is also called suspension. V.P. Gindroniya v. State of Madhya Pradesh,

(1970) 2 SCJ 573: (1970) I SCWR 294: 1970 SLR 329: AIR 1970 SC 1494: 1970(3)

SCR 448: 1970(1) SCC 362; see also D.D.Suri v. Government of India, 1973 SLJ 468:

1973 (1) SLR 668.

3. Form of order — Suspension order need not disclose that any disciplinary

proceedings were contemplated or were pending or any criminal offence was under

investigation. It would be sufficient if the competent Authority records in its

proceedings that the conditions mentioned in Regulation concerned were in existence.

Therefore non-mentioning that any disciplinary proceedings contemplated or were

pending against or any criminal case was under investigation, inquiry or trial is not

fatal. Punjab National Bank v. D.M. Amarnath, 2000(10) SCC 162: 2000(2) LLJ 256:

2000(86) FLR 640

4. Effect of Suspension — Once the employee is placed under suspension, the

Management cannot take any work from the suspended employee nor can the employee

claim full salary from the Management. But the Management has to pay the Subsistence

Allowance to the employee so that he may sustain himself. Ram Lakhan v. Presiding

Officer, AIR 2000 SC 1946: 2000(10) SCC 201: 1999(10) JT 466: 2000(2) CLT

311(SC): 2000 Lab IC 1371: 2000(2) SLR 177 (SC); followed in Ranjit Singh v.

Presiding Officer, 2003 (1) SLR 366 (P&H).

5. “Suspension” and “Put Off”, Distinction Between — The 1965 Rules do

not contemplate a put off and the Extra Departmental Branch Post Master E.D.A.

(Conduct and Service) Rules do not contemplate an act of suspension. Whether an

action is called suspension or put off, it has the effect of preventing the incumbent from

attending his duties and drawing regularly perquisites due to him. The principles of law

governing suspension should be applied to the action of put off. K.Sardamma v.

Superintendent of Post Offices, 1982 (2) SLJ 156.

6. When a Government Servant May Be Suspended or Deemed to have

been Suspended — (1) A Government servant may be placed under suspension:—

(i) where a disciplinary proceeding against him is contemplated

or is pending; or

(ii) where he has engaged himself in activities prejudicial to the

interest of the security of the State; or

(iii) where a criminal case against him is under investigation,

inquiry or trial.


(2) A Government servant shall be deemed to have been suspended:—

(i) if he is detained in custody for a period exceeding 48 hours,

from the date of his detention;

(ii) if he is sentenced to a term of imprisonment exceeding forty-

eight hours, for his conviction of an offence, and is not

forthwith dismissed or removed or compulsorily retired

consequent to such conviction, from the date of conviction.

7. Suspension Before Charges have been Framed — (i) Clause (1) (a)

provides that a disciplinary authority may place a Government servant under suspension

where disciplinary proceeding against him is contemplated or is pending. It is the

exigency of the conditions of service which requires or calls for an order of suspension.

Whether it is necessary or desirable to place the officer under suspension before

definite charges have been framed would depend on the circumstances of the case and

the view which is taken by the disciplinary authority. G. Prahlad v. State of Karnataka,

1980 (2) SLR 461; Prakash Chandra v. High Court of Judicature for Rajasthan, 1982

(2) SLR 261.

Suspension pending investigation inquiry or trial is interim in nature. It is not

required to be passed only because it will be lawful to do so. An application of mind on

the part of the competent authority is sina qua non for passing such order of suspension.

Therefore, it is expected that the appropriate authority shall not only take into

consideration the public interest but shall also take into consideration the relevant facts

and attendant circumstances as to how far and to what extent the public interest may

suffer if the delinquent officer is not placed under suspension. P. Rajender v. Union of

India, 2001(3) SLR 740 AP (DB).

(ii) Meaning of “Offence” in Sub-rule 2 (b) — The word “offence” as

referred to in rule 10(2) (b) read with section 3 (38) of the General Clauses Act means

any act or omission made punishable by any Indian Law for the time being in force. If

any act of omission which is not punishable under any Indian Law, it will not be an

offence, although such an act or omission may be an offence under the law of foreign

country. Union of India v. Susanta Kumar Mukherjee, 1977 (1) SLR 334 (Cal). See also

R.K. Mehta v. Union of India, 1993 (6) SLR 258 (CAT New Delhi); Animesh Sengupta

v. Union of India, 1994 (2) SLR 139 (CAT Calcutta) (FB); Yadvinder Singh v. Union of

India, 1996 (5) SLR 300 (P&H) (DB).

(iii) Suspension for Conviction for an Offence by a Foreign Court Under a Foreign Law — The conviction of a Government servant by a court beyond the

territory of India is not contemplated by rule 10(2)(b) and cannot be taken notice as a

ground for his suspension or for his removal, dismissal or retirement from service. He

may, however, be put under suspension under rule 10(1)(a) in contemplation of a

disciplinary proceeding. Union of India v. Susanta Kumar Mukherjee, 1977 (1) SLR

334 (Cal).

(iv) Suspension for criminal charge — The appellant is convicted for criminal

charge and is suspended and in between he was released on bail. The rule 10(2)(b)

states that if a Govt. servant is convicted for criminal case for more than forty eight


hours in Jail then he is deemed to have been placed under suspension. Animesh

Sengupta v. Union of India, 1994 (2) SLR 139 (CAT Calcutta) (FB).

But continuation of suspension even after the employee is acquitted is unjust as

the suspension can not be continued for an indefinite period of time. Balwant v. Union

of India, 2003 (3) SLR 443 (HP) (DB).

8. Not Obligatory to Suspend — It is not obligatory on the disciplinary

authority to suspend a person even though a departmental enquiry has been instituted

against him. D. Srinivasa Iyer v. Mysore State, 1971 Lab. IC 937: 1971 (1) SLR 202.

9. Suspension Pending Final Order — High Court holding enquiry against

subordinate judicial officer. Ordering his suspension pending final order of

Government. Order is valid. Mohammad Ghouse v. State of Andhra, 1957 SCJ 225: AIR

1957 SC 246: 1957 SCR 414. See also Director, BCG Vacine Laboratory, Madras v. S.

Pandian, 1996 (8) SLR 168 (SC); V.D. Trivedi v. Union of India, (1989) 7 SLR 61

(CAT New Delhi); S.V.T. Educational Institution v. A. Raghupathy Bhat, 1997 (1) SLR

713 (SC).

10. Suspension Pending Conclusion of Enquiry and Refusal to Permit to Retire — There can be no doubt that, if disciplinary action is sought to be taken against

a Government servant it must be done before he retires. If a disciplinary enquiry cannot

be concluded before the date of such retirement, the course open to the Government is

to pass an order of suspension and refuse to permit the concerned public servant to

retire and retain him in service till such enquiry is completed and a final order is passed

therein. State of Punjab v. Khemi Ram, (1969) II SCWR 718: AIR 1970 SC 214: (1971)

1 SCJ 263.

11. Suspension as Long as Criminal Trial in Progress — The petitioner was

under-trial before the Magistrate in connection with alleged commission by him of

offences under sections 409/109 and the trial was in progress. Held, there was no

illegality in placing the Petitioner under suspension as long as the trial was in progress.

Birendra Nath Mukherjee v. State of West Bengal, AIR 1973 Cal. 94. See also

Chairman & Managing Director, Punjab National Bank v. Dilip Kumar, (1988) 1 SLR

171 (Cal), see contra Balwant v. Union of India, 2003 (3) SLR 443 (H.P.) (DB).

12. Suspension pending preliminary enquiry — A Government servant can

be placed under suspension by the competent authority after objective consideration of

the allegations, the material available and the telling circumstances requiring

suspension in public interest even without a preliminary enquiry. If a preliminary

enquiry has been ordered simultaneously with the order of suspension, it shall not stand

vitiated, and in all the cases it is not necessary for the competent authority to wait for

the result of preliminary enquiry. Constable Yad Ali v. Superintendent of Police,

Chandauli, 2001(4) SLR 544 All.

13. Preliminary Enquiry Cannot be Equated to an Investigation — A

preliminary enquiry cannot justify the passing of an order of suspension under Rule 10

(1) (b). R.K. Gupta v. Union of India, 1971 (1) SLR 477 (Delhi).


14. Power of Suspension to be Sparingly Exercised — Although suspension

is not one of the punishments narrated in Rule 11, an order of suspension is not to be

lightly passed against the Government servant for the reality cannot be ignored that the

suspension brings to bear on the Government servant consequences more serious in

nature than several of the penalties made, mentioned in Rule 11. It has a disastrous

impact on the fair name and good reputation that may have been earned and built up by

a Government servant in the course of many years of service. Hence it is imperative

that the utmost caution and circumspection should be exercised in passing orders of

suspension. Subramoniam v. State of Kerala, 1973 (1) SLR 521. See also Prem Singh

Verma v. Union of India, 1993 (2) SLR 108 (CAT New Delhi).

An order of suspension should not be too hastily passed. It has more serious

consequences than some of the penalties. Nikka Ram Sharma v. Central Social Welfare

Board, (1990) 4 SLR 407 (HP) (DB). K.P. Velayudhan v. State of Kerala, (1997) 2 SLR

111 (Ker).

An application of mind on the part of the competent authority is sina qua non

for passing such order of suspension. Therefore, it is expected that the appropriate

authority shall not only take into consideration the public interest but shall also take

into consideration the relevant facts and attendant circumstances as to how far and to

what extent the public interest may suffer if the delinquent officer is not placed under

suspension. P. Rajender v. Union of India, 2001(3) SLR 740 AP (DB).

An order of suspension passed due to pendency of criminal case without

considering that the employee had not benefited from the action subject matter of

criminal proceedings and that he was witness for the department against the other

employees in respect of same subject matter during the course of departmental

proceedings. It was held that the order of suspension suffered from the vice of non-

application of mind and therefore was struck down. Guman Singh Barath v. State of

Rajasthan, 2003 (1) SLR 146 (Raj.)

15. Who can Suspend a Government Servant — The following authorities

are competent to place a Government servant under suspension —

(i) the Appointing Authority,

(ii) any authority to which Appointing Authority is sub-ordinate,

(iii) the Disciplinary Authority, and

(iv) any authority empowered in that behalf by the President.

16. Inherent Powers of Suspension — The employer has got right to suspend

an employee even if it is not provided in the rules since the order of suspension is not a

punishment when the order of suspension was issued in contemplation of a

departmental proceeding or on initiation for a disciplinary proceeding. The executive

authorities even acting as disciplinary authority may be expected to act as quasi

judiciary body. But it cannot be expected to act like a judicial officer and as such only

for the user of the word “major” against misconduct in the suspension order does not

make the order invalid in the eye of law. Sukhendu Bikash Tikader v. Chairman, Nadia

Gramin Bank, 2002(2) SLR 459 Cal.


It is by virtue of inherent powers vested in an employer that he can suspend his

employee. It is not essential that a departmental enquiry must either be initiated or

actually be pending at the time when the order of suspension is made. Malvinderjit

Singh v. State of Punjab, 1968 SLR 816 (LPA filed. Questions referred to Full Bench

see 1970 SLR 646 and 1970 SLR 660); Partap Singh v. State of Punjab, AIR 1964 SC

72. See also K.P. Velayudhan v. State of Kerala, 1997 (2) SLR 111 (Ker).

17. Publication of Regulations empowering the suspension — Regulation of

statutory Corporation claimed to have not come into force on account of the non-

publication in Gazette. No such requirement of prior publication of regulation in

official gazette in the Act establishing Corporation and therefore held that, absence of

publication does not render Regulations unenforceable. S .Mahipal Reddy v. Secretary,

Labour Dept., Govt. of A.P., Hyderabad, 1999(3) SLR 358 AP (DB).

18. Authority Competent to Appoint or Dismiss is Entitled to Suspend — The authority competent to appoint or dismiss a person is entitled to suspend him even

though an express power of suspension is not given by any specific rule. Union of India

v. Baij Nath, 1972 SLR 382 (Delhi). Ramesh Chand Saini v. Haryana Urban

Development Authority, (1996) 5 SLR 15 (P&H); S.L. Das v. State of Bihar, (1984) 1

SLR 241 (Pat) (DB).

Under A.P. Bank Officers, Employees (Discipline and Appeal) Regulation,

1981 a distinction had been made between the disciplinary authority who can impose a

punishment on the delinquent officer and the competent authority under Regulation 12

who can place him under suspension. Therefore it was held that the Assistant General

Manager, though the disciplinary authority in respect of the respondent, could not be

regarded as the competent authority who could pass the order of suspension under

Regulation 12. Chairman and Managing Director, Andhra Bank v. Ramoo Ramesh,

1997(11) SCC 610 .

19. Delegation of power to suspend — Rule 12 of the Orissa Civil Services

(Classification, Control & Appeal) Rules, 1962 provides that the Appointing Authority

or any authority empowered by the Governor may place a Government servant under

suspension where a disciplinary proceeding against such a government servant is in

contemplation or where a case against such a Government servant in respect of any

criminal offence is under investigation of trial. By an order dated 6.2.1987, the

Governor of Orissa in exercise of power under sub-rule (1) Rule 12 of the Rules

empowered the Collector of the District in connection with the affairs of the

Community Development. Subsequently, the Governor has also empowered the

Collector of the District to suspend a government servant working in connection with

the affairs of the Community Development. Subsequently, the inflict minor punishment

on the government servants working with the affairs of the community development.

It was held that merely because the Governor subsequently has empowered the

Collector of the District to also inflict minor punishment, it does not mean that by such

delegation the Governor is denuded of his power to delegate power of suspension on the

Collector. Once the Collector was empowered by the Governor to suspend a

Government servant working in connection with the affairs of the community

development, the said power continued to be exercisable by the Collector even


delegation of power on the Collector to impose minor punishment. State of Orissa v.

Baidhar Sahu, AIR 2000 SC 1683: 2000(4) SCC 475: 2000(5) JT 499: 2000 Lab IC

1846: 2000(4) SLR 355 (SC).

The competent authority to suspend an officer is appointing authority or any

subordinate authority on whom the power of disciplinary authority has been conferred

by the Governor by general or special order. When the Commissioner has been

delegated the powers of the Governor under the Rules, the Commissioner is empowered

in that behalf to take the appropriate action including power to suspend Naib Tehsilder.

Held that suspension order by such delegate is valid. A.K. Jadhav v. State of Madhya

Pradesh, 1997(9) SCC 240: AIR 1997 SC 2394: 1997(4) JT 583: 1997(2) SLR 804:

1997(76) FLR 266: 1997(2) SCJ 125: 1997 Lab IC 2339.

Under A.P. Bank Officers, Employees (Discipline and Appeal) Regulation,

1981 a distinction had been made between the disciplinary authority who can impose a

punishment on the delinquent officer and the competent authority under Regulation 12

who can place him under suspension. Therefore it was held that the Assistant General

Manager, though the disciplinary authority in respect of the respondent, could not be

regarded as the competent authority who could pass the order of suspension under

Regulation 12. Chairman and Managing Director, Andhra Bank v. Ramoo Ramesh,

1997(11) SCC 610 .

20. Suspension by Authority Other Than Appointing Authority — Where

the rules provide that the authority which is not the appointing authority may order

suspension pending enquiry, the authority, can pass order of suspension. Mohammad

Ghouse v. State of Andhra, 1957 SCJ 225: AIR 1957 SC 246: 1957 SCR 414; See also

A.K. Jadhav v. State of Madhya Pradesh, 1997(9) SCC 240: AIR 1997 SC 2394:

1997(4) JT 583: 1997(2) SLR 804: 1997(76) FLR 266: 1997(2) SCJ 125: 1997 Lab IC

2339.

21. Power of Head of Office to Suspend — Regional Manager who is head of

office is competent to suspend a driver of Himachal Government Transport. S.R.O. 608,

dated 28.2.1957 issued by President read with notification dated 30.1.1962. Bhagat

Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269.

22. Suspension Order to Show Why it has been Passed — Suspension order

did not state that it was a prelude to the institution of any disciplinary proceeding.

Order quashed. Channamallappa Kallappa v. S.M. Kegur, 1969 SLR 882 (Mysore).

23. Suspension cannot be for Indefinite Period — Executive cannot be

vested with a total arbitrary and unfettered power of placing its officers under disability

and distress, for an indefinite duration. State of Madras v. K.A. Joseph, 1969 SLR 691:

AIR 1970 Madras 155.

Where the suspension was kept alive for a period of eight years and vigilance

proceedings were kept alive for a long period without any excuse. Order of suspension

and disciplinary proceedings were quashed. [Manasaranjan Das v. State of Orissa,

1973 (2) SLR 553.] The petitioner was suspended in 1964, F.I.R. against him was

lodged in 1969. So far criminal case had not taken any shape and no charge-sheet was


filed. Suspension order was quashed. Madhusudan Bhusan v. State of Orissa, 1975 Lab

IC 11.

Allegation of supervisor”s negligence against the employee and he was placed

under suspension but no charge-sheet issued for two years. Held that an employee

cannot be suspended for an indefinite period and therefore, suspension order directed to

revoked forthwith. Beni Ram Kushwaha v. State of Rajasthan, 2002(2) SLR 550

Raj (DB).

Ordinarily it is for the employer to decide the matter relating to the suspension

of an officer and the Courts are slow in interfering with such matters, but again it all

depends on the facts and circumstances of each case which are required to be examined

to determine whether continuation of suspension would be arbitrary or not. Considering

the fact that the appellants had been under suspension for so many years and no

progress has been made in the criminal cases, It was held that the continuance of their

suspension, was clearly arbitrary and unjustified. K.K. Bhardwaj v. Delhi Vidyut Board,

1999(2) SLR 681 Delhi (DB).

24. Suspension Under Political Pressure — The power of suspension whether

inherent or statutory must be exercised by the repository of the power and that the

exercise of the power must be the free and voluntary act of authority vested with the

power. Suspension order passed under political pressure set aside. C.E. Ernimose v.

State of Kerala, 1970 SLJ 520.

Due to the Assembly question and due to authorities taking notice of holding of

the condolence meeting in which the petitioner was alleged to have discussed regarding

the dissolution of the State Assembly, based upon the report and information from

different quarters, the impugned order cannot be set aside as the same was based upon

the enquiry report and the statutory authorities had applied their mind. Ramdhyan Singh

v. State of Bihar, 1979 (3) SLR 369.

25. Suspension with Retrospective Effect — Order of suspension should not

be given retrospective effect. Such order is illegal. Lekh Ram Sharma v. State of M.P.,

AIR 1959 MP 404; Satkari Chatterji v. Commissioner of Police, AIR 1965 Cal 13;

Nepal Chandra v. District Magistrate, AIR 1966 Cal 485; R Jeevaratnam v. State of

Madras, 1967 SLR 657: (1966) II SCWR 464: (1967) 1 SCJ 404: AIR 1966 SC 951;

Braja Kishore Moharana v. Principal, Ravenshaw College, 1973 SLJ 366; Sisir Kumar

Chattopadhya v. State of West Bengal, 1973 (2) SLR 277; Narayana Misra v. State of

Orissa, 1982 (2) SLR 506; R.K. Mehta v. Union of India, 1993 (6) SLR 258 (CAT New

Delhi; Basant Ram Jaiswal v. Area Manager (North) Mahanagar Telephone Nigam

Ltd., Bombay Telephones, 1993 (6) SLR 639 (CAT Bombay).

26. Suspension is not Reduction in Rank — Order of suspension does not

amount to reduction in rank, Article 311 has no application. Pratap Singh v. State of

Punjab, AIR 1963 Punjab 298; Prem Singh v. State of Punjab, 1968 Cur. LJ 247;

Brahmanand Satpathy v. State of Orissa, AIR 1969 Orissa 224

27. Suspension no Punishment — Suspension of an officer pending a

disciplinary proceeding is not a punishment. Niranjan Misra v. State of Orissa, 1982

(2) SLR 106.


28. Suspension not Temporary Removal from Service — Suspension

pending or in contemplation of a disciplinary proceeding, does not amount to temporary

removal from service Mohammad Ghouse v. State of Andhra, AIR 1957 SC 246: 1957

SCJ 225; Registrar of the Orissa High Court v. Barada Kanta Misra, AIR 1973 Orissa

244: 1974 (1) SLR 90.

29. Suspension Order Becomes Effective When Sent Out — Order of

suspension made before date of respondent”s retirement but was received by him after

the date of retirement. Order becomes effective when it is issued and actually sent out.

State of Punjab v. Khemi Ram, (1969) II SCWR 718: (1971) 1 SCJ 263: AIR 1970 SC

214: 1970(2) SCR 657: 1969(3) SCC 28; Umashankar Chatterjee v. Union of India,

1982 (2) SLJ 368: 1982 (2) SLR 724: 1982 Lab IC 1361.

30. Suspension and Termination of Service Without Enquiry — If a

Government servant is suspended and his services are terminated without holding any

enquiry against him, such termination would amount to a punishment which will attract

the provisions of Art. 311 of the Constitution. Union of India v. Gian Singh Kadian,

1970 DLT 293: AIR 1970 Delhi 185: 1976 SLR 563.

31. Suspension After Cancelling Leave: Preparatory to Retirement — Government can, after cancelling leave preparatory to retirement granted to a civil

servant, suspend him and hold departmental enquiry against him. S.Pratap Singh v.

State of Punjab, AIR 1964 SC 72: 1964 (4) SCR 733: 1966(1) LLJ 458.

32. Suspension during arrest — Rule 10(1)(a) of the Central Rules empowers

the appointing authority to place a Government servant under suspension if an inquiry

is either being conducted against him or is contemplated against him. Where a

disciplinary authority had decided to initiate the disciplinary proceeding and pursuant to

the said decision and in exercise of the power vested by Rule 10(1)(a) of the Central

Rules, the employee, though in custody, could be placed under suspension. Union of

India v. Sunil Kumar Sarkar, AIR 2001 SC 1092: 2001(3) SCC 414.

A legal fiction was introduced under sub-regulation (2) of Regulation 18 of

Andhra Pradesh State Road Transport Corporation Employees (CCA) Regulations, 1967

that if an employee of the Corporation is arrested and detained in custody for a period

exceeding 48 hours, he should be deemed to have been suspended with effect from the

date of detention and so introducing a legal fiction, the said regulation provides that

such deemed suspension would be in operation until further orders. it was held that the

sub-regulation does not deal with nor refer to any conduct of the employee which may

amount to misconduct. G. Mutyalu v. Managing Director, APSRTC, Hyderabad,

1999(1) SLR 255 AP.

33. (i) Suspension Under Sub-rule (1) When Ceases — Suspension under

clause (a) would cease to exist when the proceeding is abandoned or is completed, as

the case may be. Suspension under clause (b) would cease to exist when the

investigation is finally abandoned or the proceedings is concluded. If suspension is

under both the clauses it would remain in force until both the proceedings are finally

terminated. S. Gopalan Nair v. State of Kerala, AIR 1970 Kerala 70.


The position of law can be said to be settled that, if an employee is only

suspended because of a criminal charge pending investigation and trial, then, if such

Government servant is ultimately acquitted, then the order of suspension will cease to

an end. In case, thereafter, if the disciplinary authority thinks that a departmental

enquiry under the rules is still necessary against the Government servant for his alleged

misconduct then fresh orders of suspension are to be passed. Anyhow, as both the

prosecution and departmental enquiry can take place simultaneously, if Government

servant is suspended on both the counts, that disciplinary proceeding is contemplated or

is pending and a case against him in respect of any criminal offence, is under

investigation or trial, then the suspension order will not come to an end on mere

acquittal and will subsist till the Government servant is exonerated in the departmental

enquiry also. Sunder Lal v. State of Rajasthan, 1980 (3) SLR 220.

(ii) Period of suspension— An unduly narrow technical view had been taken

by the Tribunal to quash the order of suspension. The view of the Tribunal that the

expression “investigation, inquiry or trial” would not include the stage of filing of the

charge-sheet in the Court and since investigation was over and the trial had not yet

commenced, the respondent could not be placed under suspension. It was held by

Supreme Court that the delinquent cannot be considered to be any better off after the

charge-sheet had been filed against him in the Court after completion of the

investigation, than his position during the investigation of the case itself. It was brought

to the notice of Supreme Court that sanction for prosecution had already been obtained

and case had been fixed for framing of charges by the trial Court. In this view of the

matter it was held that the view taken by the Tribunal in the impugned order was not

sustainable and the order of suspension was not liable to be quashed on the ground that

the case was neither at the stage of investigation nor enquiry nor trial. Union of India v.

Udai Narain, 1998(5) SCC 535.

(iii) Suspension Under Sub-rule (1)(b), Whether Ends with Acquittal or Discharge in Criminal Case — When a delinquent is suspended in consequence of

criminal proceedings against him, on acquittal or discharge he is deemed to be

reinstated. Jatindra Nath v. State of West Bengal, AIR 1969 Cal 461. In Narayan

Prasad Rawany v. State of Orissa, AIR 1957 Orissa 51, the order of suspension did not

say that the suspension was pending for further orders and hence it was held that the

order ceased to be operative as soon as criminal proceedings had terminated. In

Balwantaray Ratilal Patel v. State of Maharashtra, AIR 1968 SC 800: 1968(2) SCR

577: (1968) I SCWR 964: (1968) 2 SCJ 540: 1968 SLR 593, the order of suspension

recited that the appellant should be suspended with immediate effect “pending further

orders”. The Supreme Court held that the order of suspension does not come to end on

the date the appellant was acquitted. The order of suspension could not be automatically

terminated but it could have only been terminated by another order of Government.

34. Suspension Under Sub-rule (2)(a) When Ceases — Sub rule (2) (a)

provides that a Government servant who is detained in custody whether on a criminal

charge or otherwise for a period longer than 48 hours shall be deemed to have been

suspended by the appointing authority with effect from the date of his detention.

Sub-rule (5) provides:—


(a) An order of suspension made or deemed to have been made

under this rule shall continue to remain in force until it is

modified or revoked by the authority competent to do so.

(b) Where a Government servant is suspended or is deemed to

have been suspended, (whether in connection with any

disciplinary proceeding or otherwise), and any disciplinary

proceeding is commenced against him during the continuance

of that suspension, the authority competent to place him under

suspension may, for reasons to be recorded by him in writing,

direct that the Government servant shall continue to be under

suspension until the termination of all or any of such

proceedings.

(c) An order of suspension made or deemed to have been made

under this rule may at any time be modified or revoked by the

authority which made or deemed to have made the order or by

any authority to which that authority is subordinate.

In Abdul Rashid Khan v. Director, Library Research, 1977 SLJ 574: 1977 (2)

SLR 666, a case under J. & K. (C.C.A.) Rules, it was held that as soon as the trial has

concluded and the Government servant has been acquitted, the result would be that as

there is no longer any criminal case pending against him and also that the competent

authority has not proposed to embark upon any departmental enquiry against him, he is

entitled to be reinstated and mere filing of appeal would not stand in the way of his

reinstatement. The disciplinary authority was directed to reinstate him retrospectively

from the date he was acquitted. The Calcutta High Court in Mihir Kumar Das v. State

of West Bengal, 1980 (1) SLR 678, a case under Rule 7(3) of West Bengal Services

(C.C.A.) Rules held that the suspension does not stand revoked as soon as the

Government servant is released from custody or acquitted of the criminal charge. See

also Yadvinder Singh v. Union of India, 1996 (5) SLR 300 (P&H) (DB).

In view of the above decisions and the provisions contained in sub-rule (2)(a)

read with sub-rule (5) there is no automatic revocation of order of suspension when

Government servant is released or acquitted but the same has to be made by the

authority which made the order or any authority which made the order is subordinate.

35. Suspension of Employee on Deputation — (i) By Lending

Government— Officer of the State Government, while on deputation to foreign service

continues to be an employee of the State Government and remains subject to the control

of the State Government. The State Government is competent to charge-sheet him and

suspend him while he is on foreign service. Dr. T.R. Sakhuja v. State of Punjab, 1973

(2) SLR 599; Khemi Ram v. State of Punjab, AIR 1976 SC 1737: 1976(3) SCC 699:

1976 (2) SLR 239: 1976 SLJ 414 (SC): 1976 Lab IC 1139.

(ii) By Borrowing Government — Borrowing Government can suspend a

Government servant whose services have been lent to it. Proviso to Rule 20(1) requires

that the borrowing authority shall inform the Department which lent the services of the

Government servant, if the event of disciplinary proceedings being commenced against


him, of the circumstances leading to the commencement of such proceedings. Disregard

of the requirement of the proviso directing the sending of information does not render

either a suspension order or a disciplinary proceeding already commenced illegal or

void. Ram Adhar Singh v. Superintendent of Central Excise, 1980 SLJ 714.

36. Suspension of delinquent in custody — The Division Bench of High

Court was of the opinion that once a person is in custody the question of keeping him

under suspension does not arise. Supreme Court did not agree with the Division Bench

because the Division Bench failed to notice that the respondent was due to be released

on 27.1.1977 after serving the six months” R.I. imposed on him. After his release in the

normal course, he was entitled to claim reinstatement in service unless departmental

proceedings were initiated against him for the misconduct for which he was convicted.

Therefore, the authority thought it necessary to keep the respondent under suspension,

hence, the orders under Rule 10 of the Central Rules were issued keeping the

respondent under suspension. Rule 10(1)(a) of the Central Rules empowers the

appointing authority to place a Government servant under suspension if an inquiry is

either being conducted against him or is contemplated against him. In this case, a

disciplinary authority had decided to initiate the disciplinary proceeding against the

respondent and pursuant to the said decision and in exercise of the power vested in him

by Rule 10(1)(a) of the Central Rules, the respondent was kept under suspension.

Therefore, It was held that the concerned authority was well within its statutory power

to keep the respondent under suspension. Union of India v. Sunil Kumar Sarkar, AIR

2001 SC 1092: 2001(3) SCC 414: 2001 Supp (1) JT 193.

37. Suspension of a Government Servant Under U.P. Rules — In State of

U.P. v. Jawahar Lal Bhargava, 1974 ALJ 282: 1974 AWR (HC) 178, agreeing with the

view of Seth, J. in Rajendra Shankar Nigam v. State of U.P., 1973 SLJ 755 and not with

the wider view of Division Bench in State of U.P. v. Rajendra Shankar Nigam, 1973

ALJ 703: 1974 (1) SLR 333, it was held that Rule 49 U.P. Civil Services

(Classification, Control & Appeal) Rules does not permit the appointing authority to

suspend a Government Servant before it decides to initiate a formal inquiry under Rule

55. This view was followed in Jai Singh Dixit v. State of U.P., 1974 SLJ 377.

Suspension pending inquiry under Rule 49-A of the U.P. Civil Services

(C.C.A) Rules or Rule 1-A of U.P. Punishment and Appeal Rules can be ordered at any

stage prior to or after the framing of charges, when on objective consideration the

authority concerned is of the view that a formal departmental enquiry under Rules 55

and 55-A of C.C.A. Rules or Rules 5 and 5-A of the U.P. Punishment and Appeal Rules

is expected, or such inquiry is proceeding. At what stage the power under these rules

can be exercised shall always depend on the facts and circumstances of each case. State

of U.P. v. Jai Singh Dixit, 1975 (2) SLR 754 (FB).

38. Suspension of a Government Servant under Orissa Rules — Rule 12 of

the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 provides that

the Appointing Authority or any authority empowered by the Governor may place a

Government servant under suspension where a disciplinary proceeding against such a

government servant is in contemplation or where a case against such a Government

servant in respect of any criminal offence is under investigation of trial. By an order


dated 6.2.1987, the Governor of Orissa in exercise of power under sub-rule (1) Rule 12

of the Rules empowered the Collector of the District to connection with the affairs of

the Community Development. Subsequently, the Governor has also empowered the

Collector of the District to suspend a government servant working in connection with

the affairs of the Community Development.









1846: 2000(4) SLR 355 (SC).

39. Suspension Order Under Review (Revision) Proceedings — Order of

suspension can be passed under Rule 10(1) (a) as the review (revision) proceedings are

disciplinary proceedings. T.L. Anantharaman v. Union of India, 1979 (1) SLR 196.

40. Suspension, Charge-sheet and Enquiry Not to be Unduly Delayed — If

the charge-sheet is not followed or enquiry is not started within a reasonable time of the

order of suspension, it is wholly irregular and unwarranted and the order of suspension

is to be set aside. Satkari Chatterji v. Commissioner of Police, AIR 1965 Cal 13; N.L.

Sastry v. State of A.P., 1969 SLR 372; Manasaranjan Das v. State of Orissa, 1973 (2)

SLR 553. See also Basant Ram Jaiswal v. Area Manager (North), Mahanagar

Telephone Nigam Ltd., Bombay Telephones, 1993 (6) SLR 639 (CAT Bombay).

41. Order of Suspension Passed Under Misapprehension Which was Revoked : Of No Consequence to Mar Career — (i) Order of suspension was passed

by the Prime Minister under some misapprehension and when the petitioner made

representation against the same, he was reinstated and the order was revoked. This sad

episode in the life of petitioner cannot be treated as of any consequence so as to mar his

future career. Abdul Hamid Matu v. State of J. & K., 1974 SLJ 232.

(ii) Leave While Under Suspension — Leave may not be granted to a

Government servant under suspension F.R. 55.

Such a rule cannot be said to be unreasonable. It will prevent the officer from

prolonging the disciplinary proceeding against him. Bank of India Officers Association

v. Bank of India, 1979 (2) SLR 326.

Under rules 10(3) and 10(4), Central Civil Services (CCA) Rules, 1965, as

properly interpreted, automatic suspension will operate, on the disciplinary order being

set aside by a court, only if the employee is already under suspension. Otherwise, the

suspension cannot be retrospective. If the disciplinary order is set aside by a court,

employee is entitled to full pay upto court order. N.V.Karwakar v. Deputy Director

(Vigilance), (1988) 7 SLR 514, 522, 523 para 15 (CAT New Bombay).


(iii) Lien While Under Suspension — A government servant holding

substantively a permanent post retains a lien on that post while under suspension.

Fundamental Rule 13(e).

42. Promotion pending disciplinary proceedings — High Court held that the

act of suspension was an after thought since two months prior to the disciplinary

proceedings, the employee was empanelled for promotion and therefore High Court

directed that no effect to be given to order of suspension and select list for promotion to

be given effect forthwith. In appeal Supreme Court held that even if before the date of

proceedings the employee had been empanelled for promotion, government cannot be

prohibited from starting disciplinary proceedings if there are reasons for doing so and

when disciplinary proceedings are pending it was not appropriate for High Court to

direct select list for promotion to be given effect forth with. Government of Andhra

Pradesh v. B. Vasantha Rao, 1999(5) SCC 183: 1999(9) JT 171: 1999(8) SLT 353:

2000(1) SLR 321: 2000(3) LLN 18: 2000(84) FLR 146,

43. Compulsory Retirement During Period of Suspension — Whether

premature retirement during period of suspension amounts to punishment, see State of

Punjab v. Sukh Raj Bahadur, (1968) 3 SCR 234: AIR 1968 SC 1089: (1969) 1 SCJ 51:

1968 SLR 701: 1968 Lab IC 1286; R.C.Roy v. Union of India, AIR 1971 Delhi 186;

D.D. Suri v. Government of India, 1973 (1) SLR 668; J.M. Sharma v. State of Haryana,

1981 (1) SLR 554.

44. Sub-rule (3): Application of — Sub-rule (3) deals with a situation where

the penalty of dismissal, removal or compulsory retirement from service is set aside in

appeal or on review and provides that if the government servant was under suspension

the order of suspension shall be deemed to have continued in force on and from the date

of the original order of dismissal, removal or compulsory retirement. Union of India v.

V.B. Hajela, 1997(10) SCC 531.

45. Sub-rule (4), Interpretation of — Sub-rule (4) provides that on the setting

aside of a penalty of dismissal, removal or compulsory retirement from service imposed

upon a Government servant and on a decision to hold a further enquiry against him he

would be deemed to have been placed under suspension by the appointing Authority

from the date of the original order of dismissal, removal or compulsory retirement and

shall continue to remain under suspension until further orders. It nowhere laid down the

circumstances in which the second enquiry could be ordered. Ram Murti Chopra v.

Senior Superintendent of Post Offices, 1968 Cur LJ 526.

Classification of cases governed by rule 10 (3) and rule 10(4) of the Central

Civil Services (Classification, Control and Appeal) Rules, 1965, is founded on an

intelligible differentia, and has a rational relation to the object of the Rules-Rule 10(4)

is therefore constitutionally void. There is a difference between the various categories

of suspension under rule 10(4) of Central Civil Services (Classification, Control and

Appeal) Rules, 1965. Nelson Motis v. Union of India, (1992) 5 SLR 394 (SC).

46. Sub-rule (4), Application of — Sub-rule (4) deals with a situation where

the penalty of dismissal, removal or compulsory retirement from service is set aside or

declared null and void in consequence of or by a decision of a Court of Law and


provides that in such a case if the disciplinary authority, on a consideration of the

circumstance of the case, decides to hold a further inquiry against him on the

allegations on which the penalty of dismissal, removal or compulsory retirement has

been imposed, the government servant shall be deemed to have been placed under

suspension by the appointing authority from the date of the original order of dismissal,

removal or compulsory retirement. Union of India v. V.B. Hajela, 1997(10) SCC 531:

Union of India v. A. Vasu, 1998 (8) SCC 562.

Where the delinquent officer is dismissed from service but order of dismissal is

set aside and the authorities decide to hold a further enquiry against him, he shall be

deemed to have been placed under suspension by the appointing authority from the date

of the original order of dismissal and shall continue to remain under suspension until

further orders, if the proposed enquiry against him is on the same allegations on which

the penalty was originally imposed on him. Where the allegations are dissimilar rule

10(4) is not attracted. If rule 10(4) is not applicable a fresh enquiry is permissible only

after reinstating the delinquent officer in service and deemed suspension cannot be

sustained in law. A.K. Bala Krishnan Nair v. Senior Superintendent of Post Offices,

1982 (1) SLJ 345: 1981 (3) SLR 395 (Kerala).

Compulsory retirement of an employee of the Railway Mail Service was

ordered by the competent authority. The employee was convicted by the trial court but

exonerated by the appellate court. It was held that further inquiry into the same

allegations cannot be held. P.P.Kuttuppan v. Senior Superintendent of R.M.S., (1990) 3

SLR 561, 564 (CAT, Karnataka).

See also K. Unnikumaran v. Director General of Ordnance Factory Board,

Calcutta, 1994 (6) SLR 464 (CAT Madras).

Disciplinary authority is debarred from initiating fresh proceedings on acquittal

by the appellate court, when orders are already passed under Rule 19, CCS (CCA)

Rules, 1965. Rule 10(4) envisages “further inquiry” (and not a de novo inquiry) where

the original order of compulsory retirement has been set aside by the appellate authority

on a technical ground. In this case, appellate authority had already exonerated the

employee. P.P. Kuttappan v. Senior Superintendent of R.M.S.,Trivandrum, (1990) 12

ATC 6 (Ernakulam).

Order placing the employee under deemed suspension prior to his original

removal from service, is proper. S.P. Viswanathan v. Union of India, (1988) 4 SLR 729

(CAT Madras).

The order of suspension pending enquiry merges with the order of dismissal.

When the dismissal order is set aside by the appellate authority or the Civil Court, the

order of suspension will not revive. Canara Bank v. M. Ranchandrappa, 1999(5) SLR

87 Kar (DB).

47. Conditions to be Satisfied to Attract Sub-rule (4) — There are two

conditions which must be satisfied in order to attract the operation of sub-rule (4). First,

the order of dismissal, removal or compulsory retirement must be set aside in

consequence of a decision of a court of law, secondly, the disciplinary authority must

decide to hold a fresh enquiry on the allegations on which the order of dismissal was


originally passed. H.L. Mehra v. Union of India, 1974 SLJ 379: 1974 (2) SLR 187: AIR

1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396; Anand Narain Shukla v. State of

M.P., AIR 1979 SC 1923: 1980(1) SCR 196: 1980(1) SCC 252: 1979 Lab IC 1214:

1979 (2) SLR 288; A.K. Balakrishnan Nair v. Senior Supdt. of Post Offices, 1981 (3)

SLR 395: 1982 (1) SLJ 345.

48. Sub-rule (5)(a), Operation of — Once the relationship of master and

servant is dissolved, the suspension necessarily comes to an end and sub-rule (5)(a)

cannot possibly be construed to have the effect of continuing the suspension. H.L.

Mehra v. Union of India, 1974 SLJ 379: 1974 (2) SLR 187: AIR 1974 SC 1281:

1975(1) SCR 138: 1974(4) SCC 396. See also Basant Ram Jaiswal v. Area Manager

(North), Mahanagar Telephone Nigam Ltd., Bombay Telephones, 1993 (6) SLR 639

(CAT Bombay).

49. Two Conditions Must Co-exist Before Action can be Taken Under Sub-rule (5)(b) — One is that the Government servant must be under continuing suspension

and the other is that during the continuance of such suspension “any other disciplinary

proceedings” should be commenced against him. H.L. Mehra v. Union of India, 1974

SLJ 379: 1974 (2) SLR 187: AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396.

50. Suspension Ends on Dismissal, Cannot be Continued Under Sub-rule (5)(b) — The appellant was suspended when a case in respect of criminal offence was

under investigation against him. Whilst the criminal case was pending in court

departmental enquiry was also started. Special Judge convicted the appellant and the

High Court confirmed the conviction in appeal. The appellant was dismissed under Rule

19(i). Supreme Court on appeal set aside the conviction. In consequence of acquittal the

Disciplinary Authority set aside the order of dismissal, directed the enquiry to continue

and that appellant should continue under suspension until termination of such

proceedings under sub-rule (5)(b) of Rule 10. Held, order of suspension came to an end

when order of dismissal was passed and order continuing suspension was outside the

authority of Disciplinary Authority. H.L. Mehra v. Union of India, 1974 SLJ 379: 1974

(2) SLR 187: AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396.

Amended Rules came into force on 3.4.2004 which extended the period of

suspension, Order of suspension extended due to corruption charges. Held that no

interference with order of extension of suspension period is called for. Prem Narain

Gupta v. Union of India, 2005 (3) SLR 448 (Raj. at Jodhpur)

51. Suspension Does Not Revive, If Termination is Quashed — Suspending

the petitioner pending enquiry into the charge-sheet will come to an end when his

services are terminated. Even if the order determining the employment is quashed, the

suspension order does not revive. Om Prakash Gupta v. State of U.P., 1955 SCJ 640:

AIR 1955 SC 600: 1955(2) SCR 391: 1956(1) LLJ 1, followed in Sarat Chand Misra v.

State of U.P., 1972 SLR 184: 1971 SLJ 1027; H.L.Mehra v. Union of India, AIR 1974

SC 1281: 1975 Lab IC 984: 1975(1) SCR 138: 1974(4) SCC 396; M. Koteswara Rao v.

State of A.P., 1975 Lab IC 1244.

52. Direction to Suspend Employee to Attend Office Daily and Mark Attendance — Such instructions are inconsistent with the rules. Zonal Manager, Food


Corporation of India v. Khaleel Ahmed Siddiqui, 1982 Lab IC 1140 (AP): 1982 (2) SLJ

166: 1982 (2) SLR 779. Denial of subsistence allowance on the ground that employee

has not marked his attendance during the period of his suspension. No rule in existence

to show that marking of attendance is required from the suspended employee, the denial

of subsistence allowance, held improper. Ganesh Ram v. State of Bihar, 1995(2) PLJR

90 affirmed in Anwarun Nisha Khatoon v. State of Bihar, AIR 2002 SC 2959: 2002(6)

SCC 703: 2002(6) JT 205: 2002(5) SLR 626 (SC): 2002 Lab IC 2979: 2002 AIRSCW

3461: 2002(3) BLJR 1872: 2002(3) LLJ 844: 2002(4) Pat LJR 68: 2002 SCC(L&S) 961:

2002(95) FLR 40.

In another case, where the Rule itself required the delinquent to present himself

daily for attendance, it was held that such Rule was arbitrary and did not serve any

public purpose and therefore was violative of Article 14 and 19(1)(d) of the

Constitution. Suresh Chowdhry v. Union of India, 2003 (2) SLR 426 (Cal.).

But where rules required that even during the period of suspension the police

officer is required to attend to roll call and be available to the authorities and he

remained absent from duty on the ground of non-payment of subsistence allowance it

was held that it was his duty to go to the office and claim and collect allowance, which

if it is not paid, necessary action can be taken. It was therefore held that the conclusion

of disciplinary authority that he was wilfully absent from service was proper. State of

Punjab v. Dharam Singh, AIR 1997 SC 1905: 1997(2) SCC 550: 1996(6) SLR 361:

1997(2) SLJ 201: 1997 Lab IC 1918: 1999(3) LLJ 58.

53. Judicial review of suspension— The High Court in its extra-ordinary

jurisdiction does not interfere in the matter of suspension order with the issuance of

charge-sheet by the department unless such orders of suspension are totally mala fide or

the orders of the charge-sheet are based upon no evidence altogether. The matter of

evidence cannot be scrutinised in writ jurisdiction under Articles 226/227 of the

Constitution of India, especially the writ in the nature of certiorari, which only talk of

supervisory jurisdiction. Arun Malik v. State of Haryana, 2002(3) SLR 217 P&H.

54. Restraint on suspension by temporary injunction — Interim injunction

passed by the Court restraining employer from suspending employee without stating

any reason or recording satisfaction of ground required for passing order of temporary

injunction. As interim injunction was granted contrary to settled legal position, the

same was set-aside. Deputy Manager, Disciplinary Authority, Oriental Insurance Co.

Ltd. v. K. Veerasamy, 1999(5) SLR 461 Mad.

SUBSISTENCE ALLOWANCE, PAYMENT OF PAY AND ALLOWANCE

55. Subsistence Allowance: Admissible on Suspension — A Government

servant under suspension or deemed to have been placed under suspension shall be

entitled to payments as provided in F.R. 53, 54-A, 54-B. Employee under suspension is

entitled to subsistence allowance. Government is not obliged to pay full salary. K.K.

Jaggia v. State of Punjab, AIR 1968 Punjab 97 (FB); State of M.P. v. State of

Maharashtra, AIR 1977 SC 1466 : 1977(2) SCR 555: 1977(2) SCC 288: 1977 (1) SLR

433: (1977) 2 SCJ 20: 1977 Lab IC 697. See also K. Unnikumaran v. Director General

of Ordnance Factory, Board Calcutta, 1994 (6) SLR 464 (CAT Madras).


56. Payment During Suspension — During suspension the Government

servant is entitled to payment according to Rules in force, but if there are no rules in

that connection or there is no statutory provision, he will be entitled to full payment.

R.P. Kapur v. Union of India, AIR 1964 SC 787: (1964) 5 SCR 431: 1966(2) LLJ 164;

Balwantray Ratilal Patel v. State of Maharashtra, (1968) 2 SCR 577: (1968) 1 SCWR

964: AIR 1968 SC 800: (1968) 2 SCJ 540; Union of India v. Baij Nath, 1972 SLR

382 (Delhi).

Suspension notwithstanding, non-payment of Subsistence Allowance is an

inhuman act which has an unpropitious effect on the life of an employee. When the

employee is placed under suspension, he is demolished and the salary is also paid to

him at a reduced rate under the nick name of “Subsistence Allowance”, so that the

employee may sustain himself. M. Paul Anthony (Captain) v. Bharat Gold Mines Ltd.,

AIR 1999 SC 1416: 1999(3) SCC 679: 1999(2) JT 456: 1999(2) KLT 17(2): 1999(2)

SLR 338 (SC): 1999 Lab IC 1565: 1999(2) LLN 640: 1999(82) FLR 627: 1999(95) FJR

1: 1999(2) SCJ 358: 1999(3) SLJ 152.

Employee is entitled to increased rate of subsistence allowance, if the period of

suspension has been prolonged for reasons not directly attributable to the Government

servant. V.B. Nair v. Supdt. of Post Office, 1990 (7) SLR 229 (CAT, Ernk).

57. Denial due to delay in proceedings — When a workman approaches a

competent court bona fidely to protect himself from prejudice likely to be caused by

continuing proceedings simultaneously in domestic inquiry as also in the criminal case

grounded on the same set of facts and succeeds in getting order from a competent

judicial authority staying further proceedings in the disciplinary proceedings till the

disposal of the criminal case, it cannot be said that delay on that account in completion

of disciplinary proceedings is directly attributable to the conduct of such workman. It

cannot be denied that a workman is also entitled for a free and fair trial in the criminal

case. Hence, if a workman, in order to protect himself from the prejudice that may be

caused by simultaneous proceedings, approaches a competent judicial authority and that

authority, on being satisfied, taking into consideration the facts and circumstances of

the case, stays further proceedings in a domestic inquiry pending a criminal trial, delay

caused on that account in completion of domestic inquiry cannot be directly attributable

to the conduct of such workman because granting stay of further proceedings in a

domestic inquiry does not depend on the pleasure or mere wish of a workman himself.

May be, in a given case the court may refuse to stay disciplinary proceedings. It is open

to the employer to oppose granting order by a competent court staying disciplinary

proceedings on all the grounds available to him. B.D. Shetty v. Ceat Ltd., 2002(1) SCC

193: AIR 2001 SC 2953: 2001(2) LLJ 1552.

It is another thing to say that in case stay is granted there will be delay in

completion of disciplinary proceedings, which is directly attributable to the conduct of

a workman. Merely because legal proceedings will be pending in a court or before other

authority and they take sometime for disposal, may be inevitably, that itself cannot be

the ground to deny subsistence allowance to a workman against a statutory obligation

created on the employer. B.D. Shetty v. Ceat Ltd., 2002(1) SCC 193: AIR 2001 SC

2953: 2001(2) LLJ 1552.


58. Denial due to conviction — Second proviso to Rule 34(2) of the

Maharashtra Employees” of Private Schools (Conditions of Services) Rules, 1981, read

as under: “Provided further that, when an employee is convicted by a competent Court

and sentenced to imprisonment, the subsistence allowance shall be reduced to a nominal

amount of rupee one per month with effect from the date of such conviction and he

shall continue to draw the same till the date of his removal or reinstatement by the

competent authority”.

It was held that the above rule is unreasonable and clearly violative of Article

14 as well as 21 of the Constitution of India. Obviously the subsistence allowance is the

basic monetary relief provided to an employee which cannot be reduced to the level of

Rs. 1/- which would lead the petitioners to total starvation which is patently contrary to

the enhanced concept of personal liberty under Article 21 of the Constitution of India

which entitled to right to live with human dignity. The aforesaid second proviso to Rule

34(2) is also violative of Article 14 of the Constitution of India as the same is

unreasonable and has no rational nexus with the object sought to be achieved.

Basweshwar M. Mamdapure v. Primary Education Board, Solapur Corporation,

Solapur, 1999(1) SLR 421 Bom (DB).

59. Denial under Standing orders — Under Section 10A, Workman under

Industrial Employment Standing Order Act has a right to receive subsistence allowance

and the same cannot be curtailed by certified standing order. Mamta Parsad v.

Presiding Officer, 2002(1) SLR 232 (P&H).

60. Natural justice — Reinstatement of employee after order of suspension –

Order of forfeiture of subsistence allowance cannot be passed without giving

opportunity of hearing. Shyam Sunder Mal Mehta v. Rajasthan High Court, 2002(2)

SLR 515 Raj (DB).

Non-payment of subsistence allowance from the date of suspension till removal

and employee not appearing in departmental enquiry and giving financial crunch on

account of non-payment of subsistence allowance and illness as reason for not

participating in Disciplinary Proceedings. Held that it was a clear case of breach of

principle of natural justice on account of denial of reasonable opportunity to delinquent

to defend himself in the departmental enquiry. Jagdamba Prasad Shukla v. State of

Uttar Pradesh, AIR 2000 SC 2806: 2000(7) SCC 90: 2000(2) LLJ 1513: 2000 Lab IC

3111: 2000(5) SLR 164: 2000(87) FLR 1: 2000(97) FJR 304

61. Order of Dismissal Set Aside for Non-payment of Subsistence

Allowance — Appellant was suspended and enquiry was held at J. 500 kms. away from

R where he was residing. No subsistence allowance was paid to him and he did not

participate in the enquiry as he had no money to go to J. Enquiry proceeded ex parte.

Charges were found proved and he was dismissed from service. Held, the appellant did

not receive a reasonable opportunity of defending himself in the enquiry proceedings

and the order of dismissal cannot stand. Ghanshyam Das Shrivastava v. State of M.P.,

(1973) 1 SCWR 391: AIR 1973 SC 1183: 1973(1) SCC 656: 1973(1) SLR 636: 1973

SLJ 356.


62. Pay and Allowances on Acquittal or Discharge in Criminal Case — (i)

When a delinquent is suspended in consequence of the criminal proceedings against

him, on acquittal or discharge he is deemed to be reinstated. He is entitled to full salary

and allowance. If the Government initiates any departmental proceedings against him

fresh order of suspension is necessary unless rules provide otherwise. Jatindra Nath v.

State of West Bengal, AIR 1969 Cal 461; See other view that delinquent not entitled to

full salary. Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269.

(ii) Delinquent was placed under suspension during the pendency of criminal

trial. He was acquitted on technical ground. It is for the competent authority to consider

what proportion of pay and allowances should be given and what period of absence

from duty be treated as period spent on duty. Where in the circumstances it cannot be

said that the initial suspension was not justified. He was not entitled to full pay etc.

Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269.

(iii) Appellant was dismissed from service on conviction. The conviction order

was set aside in appeal. Whether petitioner was honourably acquitted or was given

benefit of doubt. Whether suspension was or not wholly unjustified. Authority to make

specific order and to say whether or not the period of suspension or absence from duty

shall be treated as a period spent on duty. Prem Singh v. State of Punjab, 1968 SLR

399; 1968 Cur LJ 247.

(iv) For the purpose of deciding whether a suspension was justified or not, the

reasons for acquittal may have to be taken into account. Jose v. Inspector General of

Police, 1974 (2) SLR 419.

63. Concept of “Honourable Acquittal” or “Full Exoneration” — Petitioner

was suspended because there was criminal prosecution against him and was reinstated

after he was acquitted. He is entitled to full pay during the period of his suspension. It

is not open to the authorities concerned to bring in the concept of “honourable

acquittal” or “full exoneration” so far as the judgement of the criminal court is

concerned. Ramsinghji Viraji Rathod v. State of Gujarat, 1971 Lab IC 923; Union of

India v. Jaya Ram, AIR 1960 Madras 325 relied upon, State of Orissa v. Shailabehari,

AIR 1963 Orissa 73 dissented from. In Girjaprasad Nagardas Dave v. State of Gujarat,

1971 Lab IC 921, it was held that the authority must apply its mind also to the question

whether or not suspension was wholly unjustified, even if it comes to the conclusion

that the Government servant has not been fully exonerated.

The Supreme Court in State of Assam v. Raghava Rajgopalachari, 1972 SLR

915 held, “If on reading the judgment and order which acquits a Government servant it

appears to the Government or the competent authority that the Government servant has

not been fully exonerated of the charges levelled against him, the Government or the

competent authority would be entitled to come to the conclusion that clause (b) (F.R.54)

would apply and not clause (a). Acting under clause (b), the competent authority is

entitled to give, if the circumstances so warrant, the whole of the pay and allowances

and also treat the whole of the period of absence from duty as period spent on duty”.

The spirit of the provisions appears to be that, if a delinquent servant is

exonerated merely for non-compliance of the technical procedural rules and is not


exonerated on merits, he is not entitled to full pay. Even assuming that the petitioner

was acquitted on benefit of doubt, it cannot be said that he is acquitted for non-

compliance with the technical rules of procedure. An order under F.R. 54(2) or

F.R.54(4) cannot be issued without notice to the delinquent office. It was further held

that F.R. 54 is not applicable to cases where a Government servant is suspended in view

of pending criminal case. It is applicable only to the cases of reinstatement (or

revocation of the suspension order) where an order of dismissal, removal or compulsory

retirement passed in a departmental proceeding is set aside. A Government servant

cannot be deemed the benefit of “duty” and “full pay” where such a servant is

suspended to the pendency of a criminal case in which he is acquitted. Mohanlal v.

Union of India, 1982 Lab IC 594.

Where a Government servant is suspended on the ground that he was involved

in a criminal case (section 498A read with section 34, Indian Penal Code) and placed

under suspension but re-instated on acquittal by the criminal court, the position is

as under:—

(i) The order of suspension ceases to be operative on acquittal even if the

acquittal is as a result of giving the benefit of doubt.

(ii) The acquitted employee is entitled to full salary and allowances since

the date of suspension.

(iii) Neither Fundamental Rules, rule 54B nor instructions issued under the

Central Civil Services, Classification etc. Rules, nor administrative

instructions can empower the Government to withhold full pay and

allowances for the period of deemed suspension which is exclusively

relatable to detention and prosecution in criminal court. A.Thankavelu

v. Superintendent of Post Offices, (1990) 7 SLR 348, 353, para 9 (CAT

Ernakulam).

64. Order for Withholding Pay be Passed After Giving Opportunity —

Delinquent placed under suspension during pendency of hearing of charges. Re-instated

after acquittal. Pay not allowed for the period of suspension. Held, order withholding

pay and allowances could not be passed without giving reasonable opportunity of being

heard. P.C. Nath v. State of Orissa, 1970 Lab IC 949: 1970 SLR 753; M.L. Babeja v.

State, 1968 DLT 648; S. Natarajan v. Supdt. of Police, 1975 Lab IC 132.

65. Speaking Order to be Passed — Order under F.R. 54(2) is a quasi-judicial

order. Authority must give reasons for his decision and pass speaking order.

M. Gopal Krishna Naidu v. State of M.P., (1968) 2 SCJ 88: AIR 1968 SC 240: 1968(1)

SCR 355: 1967 SLR 800; M.L. Babeja v. The State, 1968 DLT 648.

66. Pay of Suspension Period on Termination of Services of Temporary Government Servant — A temporary Government servant under suspension whose

services are terminated by notice under Central Civil Services (Temporary Service)

Rules without any order or reinstatement, can claim full salary for the period of

suspension. Union of India v. Gian Singh Kadian, 1970 DLT 293: AIR 1970 Delhi 185.

R.10] PENALTIES AND DISCIPLINARY AUTHORITIES 127

67. Limitation to Claim Pay of Suspension, Period When Starts — Cause of

action for claiming full pay and allowance did not accrue to the respondent during the

period of his suspension and it accrued to him only when the order of suspension stood

revoked. Union of India v. Gian Singh Kadian, 1970 DLT 293: AIR 1970 Delhi 185:

1970 SLR 563: State of M.P. v. State of Maharashtra, AIR 1977 SC 1466: 1977(2) SCR

573: 1977(2) SCC 593: 1977 (1) SLR 433: (1977) 2 SCJ 20.

68. Suspension Order, Communication of — An order of suspension when

once issued and sent out to the concerned Government servant must be held to have

been communicated no matter when he actually received it. State of Punjab v. Amar

Singh Harika, AIR 1966 SC 1313: 1966(2) LLJ 188: 1965-66(28) FJR 464: (1966) 2

SCJ 777; State of Punjab v. Khemi Ram, (1971) 1 SCJ 263: AIR 1970 SC 214: 1970 (2)

SCR 657; B.J. Shelat v. State of Gujarat, AIR 1978 SC 1109: 1978(3) SCR 553:

1978(2) SCC 202: 1978 SLJ 503: (1978) 2 SCJ 505: 1978 (2) SLR 88; Umashankar

Chatterjee v. Union of India, 1982 (2) SLJ 368: 1982 (2) SLR 724.

69. Enquiry resulting in minor penalty — When an inquiry has been held for

imposition of a major penalty and finally minor penalty is awarded, the suspension

should be considered unjustified and in terms of F.R. 54B the employee should be paid

full pay and allowances for the period of suspension by passing a suitable order under

F.R. 54-B. S.P. Naik v. Board of Trustees, Mormugao Port Trust, Goa, 1999(3) SLR

577 Bom (DB).

70. Reinstated Allegations Having Not Been Proved : Period of Suspension to be Treated as on Duty — The petitioner was suspended on allegations that she had

not obeyed the transfer order. Allegations were not proved against her and then she was

re-instated. The order of re-instatement so far as it states that the period of suspension

will be treated as leave of the kind due to her was quashed and it was directed that the

period of suspension of petitioner shall be considered as on duty and not as leave of the

kind due. Dr. Jagdish Chhatwal Walia v. State of Punjab, 1982 (1) SLR 880.

128 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R . 11

PART V

PENALTIES AND DISCIPLINARY AUTHORITIES R . 11

11. Penalties : — The following penalties may for good and

sufficient reasons and as hereinafter provided, be imposed on a

Government servant, namely: —

Minor Penalties:

(i) Censure;

(ii) withholding of his promotion;

(iii) recovery from his pay of the whole or part of any pecuniary

loss caused by him to the Government by negligence or breach of

orders;

(iiia) reduction to a lower stage in the time scale of pay for a

period not exceeding 3 years, without cumulative effect and not

adversely affecting his pension;

(iv) withholding of increments of pay;

Major Penalties — Save as provided for clause (III) (A)

(v) Reduction to a lower stage in the time scale of pay for a

specified period, with further directions as to whether or not the

Government servant will earn increments of pay during the period of

such reduction and whether on the expiry of such period, the reduction

will or will not have the effect of postponing the future increments of

his pay;

(vi) Reduction to a lower time-scale of pay, grade, post or Service

which shall ordinarily be a bar to the promotion of the Government

servant to the time-scale of pay, grade, post or Service from which he

was reduced, with or without further directions regarding conditions of

restoration to the grade or post or Service from which the Government

servant was reduced and his seniority and pay on such restoration to that

grade, post or Service;

(vii) Compulsory retirement;

(viii) Removal from service which shall not be a disqualification

for future employment under the Government;

R . 11] PENALTIES AND DISCIPLINARY AUTHORITIES 129

(ix) Dismissal from service which shall ordinarily be a

disqualification for future employment under the Government.

Provided that, in every case in which the charge of acceptance from

any person of any gratification, other than legal remuneration, as a

motive or reward for doing or forbearing to do any official act is

established, the penalty mentioned in clause (viii) or clause (ix) shall be

imposed:

Provided further that in any exceptional case and for special

reasons recorded in writing, any other penalty may be imposed.

Explanation — The following shall not amount to a penalty within

the meaning of this rule, namely: —

(i) Withholding of increments of pay of a Government servant for

his failure to pass any departmental examination in accordance with the

rules or order governing the Service to which he belongs or post which

he holds or the terms of his appointment;

(ii) Stoppage of a Government servant at the efficiency bar in the

time-scale of pay on the ground of his unfitness to cross the bar;

(iii) Non promotion of a Government servant whether in a

substantive or officiating capacity, after consideration of his case, to a

Service, grade or post for promotion to which he is eligible;

(iv) Reversion of a Government servant officiating in a higher

Service, Grade or post, to a lower Service, grade or post, on the ground

that he is considered to be unsuitable for such higher Service, grade or

post on any administrative ground unconnected with his conduct;

(v) Reversion of a Government servant, appointed on probation to

any other Service, grade or post to his permanent Service, grade or post

during or at the end of the period of probation in accordance with the

terms of his appointment of the rules and orders governing such

probation;

(vi) Replacement of the services of a Government servant, whose

services had been borrowed from a State Government or any authority

under the control of a State Government, at the disposal of the State

Government or the authority from which the services of such

Government servant had been borrowed;


(vii) Compulsory retirement of a Government servant in

accordance with the provisions relating to his superannuation or

retirement;

(viii) Termination of the services : —

(a) of a Government servant appointed on probation, during or

at the end of the period of his probation, in accordance

with the terms of his appointment or the rules and orders

governing such probation; or

(b) of a temporary Government servant in accordance with the

provisions of sub-rule (1) of rule 5 of the Central Civil

Services (Temporary Service) Rules, 1965; or

(c) of a Government servant, employed under an agreement,

in accordance with the terms of such agreement.

COMMENTARY

The commentary on Rule 11 is very exhaustive and has therefore been divided

into five synopsis.

Synopsis – 1. Relates to penalties in general, minor penalties, censure,

withholding of promotion, recovery from pay of whole or part of pecuniary loss caused

to Government and withholding of increments of pay. Clauses (i), (ii), (iii), (iv),

Explanation (i), (ii) and (iii).

Synopsis – 2. Relates to reduction to lower stage in time-scale of pay, reduction

to lower grade, post or service, postponement of future increments, reversion and

replacement of services of borrowed servants. Clause (v) and (vi), Explanation (iv), (v)

and (vi).

Synopsis – 3. Relates to compulsory retirement, retirement and superannuation.

Clause (vii), Explanation (vii).

Synopsis – 4. Relates to discharge, removal and dismissal from service. Clauses

(viii) and (ix).

Synopsis – 5. Relates to termination of services of (a) a Government servant

appointed on probation, (b) a temporary Government servant, (c) a Government servant

employed under an agreement, Explanation (viii).


GENERAL

S Y N O P S I S-1

1. Penalty, meaning of ....................................................................................................... 134

2. Penalties which can be imposed .................................................................................... 134

3. Adverse entry in confidential report no penalty ............................................................. 135

4. Discharge or termination of service on abolition of post, no penalty ............................. 135

5. Non-promotion, no penalty ............................................................................................ 135

6. Compulsory retirement in public interest, no penalty ..................................................... 135

7. Suspension, no penalty ................................................................................................... 135

8. Transfer, whether penalty ............................................................................................... 136

9. Penalty, quantum of ....................................................................................................... 136

10. Imposing of one or more penalties simultaneously ........................................................ 136

11. Administrative order involving civil consequences ........................................................ 137

12. No penalty can be imposed unless charge is found proved ............................................ 137

13. Imposition of penalty of dismissal, removal or reduction in rank .................................. 138

14. Competent authority to impose penalty .......................................................................... 139

15. Application of Article 311 of Constitution ..................................................................... 139

16. Order whether by way of punishment ............................................................................ 141

17. No penalty after retirement............................................................................................. 142

MINOR PENALTIES

CLAUSE (i)

Censure

18. Warning when censure ................................................................................................... 143

19. Warning: promotion ...................................................................................................... 143

20. Show cause notice: vague .............................................................................................. 143

21. Censure, no ground for overlooking seniority for promotion ........................................ 143

CLAUSE (ii)

Explanation (i)

Withholding of Promotion

Non-Promotion

Promotion

22. Promotion, rules be followed ........................................................................................ 143

23. Promotion rules, change of ............................................................................................. 144


24. Promotion, relaxation of rule in case of scheduled castes and scheduled tribes ............ 144

25. Promotion, administrative instructions ........................................................................... 144

26. Promotion in Defence Services, executive power of Government to formulate policy .. 145

27. Promotion, principle of .................................................................................................. 145

28. Employee cannot compel that he be appointed or promoted .......................................... 145

29. Promotion cannot be claimed as a matter of right .......................................................... 145

30. Promotion case considered ............................................................................................. 146

31. Non-consideration for promotion ................................................................................... 146

32. Non-consideration for promotion as post temporary or on ad hoc basis ........................ 146

33. Non-consideration for promotion as working somewhere else ...................................... 147

34. Non-consideration for promotion when enquiry is pending ........................................... 147

35. Non-consideration for promotion for being punished for insubordination ..................... 147

36. Non-promotion for remarks in confidential report ......................................................... 147

37. No enquiry is required to decide not to promote ............................................................ 148

38. No right to claim promotion till cadre constituted ......................................................... 148

39. Not considered for promotion as took part in strike ....................................................... 149

40. Non consideration for promotion due to disciplinary punishment.................................. 149

41. Consideration of case for promotion long before vacancy arises ................................... 149

42. Pleading cause for promotion by M.L.A. ...................................................................... 149

43. Promotion, higher educational qualification no proof of more merit ............................ 150

44. Promotion, keeping of in abeyance ............................................................................... 150

45. Promotion, principles of natural justice cannot be applied ............................................ 150

46. Punishment of censure, no bar for promotion ............................................................... 150

47. Departmental Enquiry and Promotion ........................................................................... 150

48. Promotion and sealed cover procedure ........................................................................... 150

49. Promotion, “next below rule” explained ....................................................................... 152

50. Promotion on basis of seniority-cum-merit or fitness ................................................... 152

51. Promotion cannot be claimed by seniority alone ........................................................... 152

52. Promotion as Addl. District and Sessions Judge ........................................................... 153

53. “Seniority-cum-fitness, seniority-cum-merit and merit-cum seniority”, principles of .. 153

54. Promotion to selection post --

(i) Not a matter of right .......................................................................................... 154

(ii) Seniority ........................................................................................................... 154

(iii) Merit ................................................................................................................ 154

(iv) Authority who can make selection ................................................................... 155

(v) Administrative Instructions ............................................................................... 155

55. Promotion by selection ................................................................................................... 155


56. Promotion, reasonable classification for ....................................................................... 155

57. Rules of classification ................................................................................................... 155

58. Promotion: community-wise unconstitutional ............................................................... 155

59. Reservation of posts for members of Scheduled Castes, Scheduled Tribes and

Backward Classes .......................................................................................................... 156

60. Temporary exemption from test for promotion for members of Scheduled Castes and

Schedule Tribes ............................................................................................................. 157

61. Promotion or demotion, Powers of Court ...................................................................... 157

62. Overlooking for promotion amounts to punishment ...................................................... 158

63. Separate units combined, difference in promotional opportunities unconstitutional ..... 158

64. Writ to challenge promotion constitutes no misconduct ................................................ 158

DEPARTMENTAL EXAMINATION OR TEST FOR PROMOTION

65. Holding test examination for promotion ....................................................................... 158

66. Viva-voce, written test .................................................................................................. 159

DEPARTMENTAL PROMOTION, SELECTION COMMITTEE OR BOARD

67. Departmental promotion committee, position of ........................................................... 160

68. Selection Board or Promotion Committee, members of ................................................ 161

69. Committee not validly constituted ................................................................................. 162

70. Delay in constitution of the committee .......................................................................... 162

71. Promotion committee proceedings, claim of privilege .................................................. 162

72. Promotion committee, disclosure of proceedings of ..................................................... 162

73. Promotion or selection committee proceedings, scrutiny or review of .......................... 162

74. Promotion committee took into consideration, confidential reports made by a person

who himself was in the field for promotion ................................................................... 162

75. Whether the promotion committee to give reasons for selecting or rejecting a candidate

....................................................................................................................................... 163

76. Judicial review of reasons given by Committee ............................................................. 163

77. Recommendations of Promotion Committee not binding .............................................. 163

78. Public Service Commission, opinion of ........................................................................ 164

79. Ad-hoc promotion ......................................................................................................... 164

80. Refusal to accept promotional post ............................................................................... 164

81. Supersede, meaning of .................................................................................................. 164

CLAUSE (iii)

Recovery from Pay of Pecuniary Loss

82. Recovery of loss ............................................................................................................ 164


CLAUSE (iv)

Explanation (ii)

Withholding of Increments of Pay

83. Increment defined........................................................................................................... 165

84. Advance increment discontinued .................................................................................. 165

85. Increments, discrimination ............................................................................................ 165

86. Increment and moral turpitude ...................................................................................... 166

87. Increment is earned as a matter of course unless withheld ............................................ 166

88. Increment stopped for not passing departmental examination ....................................... 167

89. Increment, stoppage of – Speaking order be passed ...................................................... 167

90. Increment stoppage due to Absence from Duty ............................................................. 167

91. Increment stoppage and Natural Justice ......................................................................... 168

92. Increment when becomes due during period of notice to retire compulsorily ............... 168

93. Postponement of future increment ................................................................................. 168

94. Entitlement on reinstatement .......................................................................................... 168

Explanation (iii)

Stoppage at the Efficiency Bar

95. Efficiency bar, crossing of ............................................................................................. 168

96. Stoppage at efficiency bar for unfitness ........................................................................ 169

97. Stoppage at efficiency bar for adverse remarks ............................................................. 169

98. Stopping of crossing of efficiency bar for unsatisfactory work and inefficiency .......... 169

99. Discretion of authority to allow crossing of efficiency bar from a certain date .............. 170

100. Discretion of authority not to allow to cross efficiency bar: whether court can interfere

in the discretion of Authority ........................................................................................ 170

101. Order stopping to cross efficiency bar, time when to be passed .................................... 170

102. Order allowing to cross efficiency bar whether condones all previous adverse

entries ............................................................................................................................ 170

1. Penalty, Meaning of — The expression “penalty” carries with it a sense of

punishment. S.K. Dasgupta v. O.N.G. Commission, AIR 1970 Guj. 149; Prem Singh

Verma v. Union of India, 1993 (2) SLR 108 (CAT New Delhi); Asit Baron Choudhury

v. Union of India, 1994 (7) SLR 518 (CAT Calcutta).

2. Penalties Which can be Imposed — It is the basic principle of

administrative justice that an officer entrusted with a particular job has to perform his

duties honestly, efficiently and in accordance with the rules. If he deviates from this

path he is to suffer a penalty prescribed. State of Andhra Pradesh v. N. Radhakishan,

1998(4) SCC 154: AIR 1998 SC 1833: 1998(2) SLR 786: 1998(3) SLJ 162: 1998(2)


LLN 452: 1999(94) FJR 62. No penalty can be imposed outside the Classification,

Control and Appeal Rules.

An order passed against a teacher withholding his pay temporarily for

unsatisfactory work was held against the spirit of the constitution. Suraj Narain v. State

of M.P., AIR 1960 MP 303 see also State of Punjab v. Inder Sain Sharma, 1968 SLR

519, wherein it was held that no penalty can be imposed which does not exist in the Act

or Rules.

3. Adverse Entry in Confidential Report : No Penalty — Making of an

adverse entry is not equivalent to imposition of a penalty. R.L.Butail v. Union of India,

(1970) II SCWR 561: (1970) 2 SCC 876: 1970 SLR 426: (1971) 2 SCJ 566.

4. Discharge or Termination of Service on Abolition of Post, No Penalty —

The discharge of a Civil servant on account of abolition of the post held by him not an

action which is proposed to be taken as a personal penalty but it is an action concerning

the policy of the State whether a post should continue or not. Ramnatha Pillai v. State

of Kerala, (1974) 1 SCWR 1: AIR 1973 SC 2641: 1974(1) SCR 515: 1973(2) SCC 650:

1974(1) SLR 225; State of Haryana v. Des Raj Sangar, AIR 1977 SC 1199: 1976 (1)

SLR 191; 1976 SLJ 222: 1976 Lab IC 849.

The old post is abolished and another candidate is appointed in newly created

post, Mahesh Kumar Mudgil v. State of Uttar Pradesh, (1998) 1 SLJ 266.

5. Non-promotion, No Penalty — Non-promotion to a post after considering

the case of a Government servant does not amount to reduction in rank or penalty.

R.K.Kaw v. State of J & K, AIR 1958 J & K 43; Vidya Sagar v. Board of Revenue, U.P.,

AIR 1964 All 356; State of West Bengal v. Smt. Kalyani Chowdhury, AIR 1970

Cal 225.

6. Compulsory Retirement in Public Interest, No Penalty — The premature

retirement of a Government servant in public interest casts no stigma and is not

punishment. Baikunthanath Das v. Chief District Medical Officer, 1982 (1) SLJ 648:

1981 (3) SLR 459; Kartar Singh v. Punjab State, 1982 (1) SLR 307. See also State of

Madhya Pradesh v. Indra Sen Jain, AIR 1998 SC 982: 1998(1) SCC 451: 1997(9) JT

230: 1998(1) SLR 67: (1998) 1 SCJ 305.

7. Suspension, No Penalty — Suspension of an officer pending a disciplinary

proceeding is not a punishment. Niranjan Misra v. State of Orissa, 1982 (2) SLR 106.

Suspension is not a punishment but is only on of forbidding or disabling an

employee to discharge the duties of office or post held by him. In other words it is to

refrain him to avail further opportunity to perpetrate the alleged misconduct or to

remove the impression among the members of service that dereliction of duty would

pay fruits and the offending employee could get away even pending enquiry without

any impediment on to prevent an opportunity to the delinquent officer to scuttle the

enquiry or investigation or to win over the witnesses or the delinquent having had the

opportunity in office to impede the progress of the investigation or enquiry etc. State of

Orissa v. Bimal Kumar Mohanty, AIR 1994 SC 2296: 1994(4) SCC 126: 1994(2) SLJ


72: 1994(27) ATC 530: 1994(84) FJR 527: 1994(68) FLR 970: 1994(1) LLN 889:

1994(2) SLR 384: 1995(1) LLJ 568.

8. Transfer, Whether Penalty — Permanent service or department can be

made irrespective of the wishes of the Government servant. The transfer of lien is also

justified. [Fateh Singh Chugha v. State of Punjab, AIR 1970 P&H 325; Mathew

Muthalali v. Revenue Divisional Officer, 1973 SLJ 213]. But the transfer from one

transfer of an employee always means and implies transfer to the same post which he is

holding or to an equivalent post in the sense of a post in the same grade or carrying the

same pay-scale. Transfer to a lower post is reversion and reduction in rank. Transfer to

a post which has less powers and status is also reduction in rank. [Devi Prasad

Upadhya v. Director of Panchayat Raj, U.P., 1974 (2) SLR 199; Madan Gopal Singh v.

Union of India, 1969 SLR 576 (Delhi)]. Because of certain allegations of misconduct

and wilful disobedience the authorities instead of taking any disciplinary action against

him transferred him. The transfer being by way of punishment is against the provisions

of Article 311(2) without giving him an opportunity of being heard. Biman Kumar Roy

v. S. Lakshminarayanan, 1978 (2) SLR 136.

Also see Transfer (Allied Service Matters).

9. Penalty, Quantum of — In taking action against a Government servant who

is convicted of any offence, the authority concerned has to take into account not merely

the fact of his conviction but should also examine his conduct leading to his conviction

and consider inter alia the nature and quantum of the penalty to be imposed. Rajender

Singh v. Punjab State, 1969 Cur LJ 821: 1969 SLR 754; K.M. Agrahari v. Lt.

Governor, Delhi Administration, 1980 (3) SLR 555: 1981 SLJ 216. See also Asit Baran

Choudhury v. Union of India, 1994 (7) SLR 518 (CAT Calcutta); Ansar Ali Rakshak v.

Union of India, (1984) 1 SLR 369 (Guj).

Unless the punishment or penalty imposed by the Disciplinary or the

Departmental Appellate Authority, is either impermissible or such that it shocks the

conscience of the High Court, it should not normally substitute its own opinion and

impose some other punishment or penalty. Apparel Export Promotion Council v. A.K.

Chopra, AIR 1999 SC 625: 1999(1) SCC 759: 1999(1) LLJ 962: 1999(1) SCJ 265:

1999(1) KLT 38(SN): 1999 Lab IC 918: 1999(1) LLN 1067: 1999(81) FLR 462:

2000(1) SLJ 65.

10. Imposing of One or More Penalties Simultaneously — (i) The words

“The following penalties may, for good and sufficient reasons as hereinafter provided,

be imposed on a Government servant” indicate that it is open to a punishing authority to

impose any one or more of the penalties. There is no bar for the punishing authority to

impose two of the penalties enumerated in the Rule simultaneously. Bairagi Charan

Baisoi v. State of Orissa, 1974 SLJ 25: Punnose v. Manager, P & T, 1977 (2) SLR 399.

(ii) In Swami Saran Saxena v. State of U.P., 1969 SLR 787, it was however,

held that two penalties cannot be imposed for the same misconduct.

(iii) Punishment of withholding increment when the appeal against punishment

was pending and the period for which the increment was with-held expired in the

meanwhile during which he was not considered for promotion. Held that principles of


double jeopardy has no application. Chittoor Co-operative Town Bank Ltd. v. A.

Devendra Reddy, 2002(1) SLR 106 AP (DB).

While considering grant of promotion it is open to the authority to consider the

facts that earlier some punishment was imposed on the candidate during the relevant

period. Stoppage of increment in this regard would not amount to Double Jeopardy.

Collector of Thannjavur District. v. S. Rajagopalan, 2000(9) SCC 145: 2000(3) JT 376:

2000(7) JT 309: 2000(85) FLR 381: 2000(2) SLR 552. See also Union of India. v.

K.V.Janki Raman, 1991(3) SCR 790: AIR 1991 SC 2010: 1991(4) SCC 109: 1991(3) JT

527: 1992(23) ATC 322: 1991(63) FLR 766: 1991(2) LLJ 570: 1991 Lab IC 2045:

1991(63) FLR 766: 1991(5) SLR 602: 1991 Lab IC 2045: 1992(1) ATR 173.

11. Administrative Order Involving Civil Consequences — An

administrative order which involves civil consequences must be made consistently with

the rules of natural justice after informing the civil servant of the case of the State, the

evidence in support thereof and after giving an opportunity to the civil servant of being

heard and meeting or explaining the evidence. State of Orissa v. Dr. (Miss) Binapani,

(1967) II SCWR 443: (1967) 2 SCR 626: AIR 1967 SC 1269; (1967) 2 SCJ 339.

The matter can not be dealt with as routine administrative matter as it is a quasi

judicial matter involving service career of the employee and the Competent Authority is

required to pass speaking order by giving reasons for imposing the penalty after

considering the enquiry report, representation of the petitioner and other material

concerning disciplinary proceedings on record. Whenever an Authority decides a

matter, which entails civil consequences to the person concerned, it must pass speaking

order giving reasons. Yashpal Singh v. National Textile Corporation Ltd., 1999(1) SLR

680 HP (DB). The penalty of removal from service cannot be imposed without recourse

to disciplinary proceedings. Uttar Pradesh Co-operative Land Development Bank Ltd.

v. Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC 741: 1998(9) JT 81: 1999(2)

SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3) SLJ 124

12. No Penalty can be Imposed Unless Charge is Found Proved — After

departmental enquiry the Director ordered that the respondent should resume duty and

be paid half of basic pay. A warning was also issued that he should not take part in any

political activities in future, the order did not contain any finding on the charges

preferred against him. Held, since the respondent has not been found guilty, the

payment of only 25 percent of his basic pay and the warning as disciplinary measures,

i.e. as penalties could not be passed. State of West Bengal v. Bata Krishna Barman, AIR

1971 SC 156: 1970(3) SCC 612: 1971 Lab IC 23: 1971 SLR 600.

The petitioner was served with a charge-sheet to which he replied. No enquiry

was held as provided in the rules, second show cause notice was issued and impugned

order imposing penalty was passed. Held, the procedure adopted for holding the

petitioner guilty and the passing of the impugned order is completely violative of the

rules and the provisions of Article 311 of the Constitution. It is patent that subsequent

to the serving of the charge-sheet on the petitioner no enquiry was held and thus it

could not possibly be held that any charge against him had been established. Further he

has been punished on the basis that charges of forgery have been established against

him but this was neither a charge in the charge-sheet nor was one of the grounds


mentioned in the show cause notice. Impugned order wholly unsustainable and quashed.

Balraj Kumar Murria v. State of Punjab, 1982 (1) SLR 355.

In criminal case the charge is to be proved by the Standard of proof beyond

reasonable doubt while in departmental proceedings the standard of proof for proving

the charge is preponderance of probabilities. Senior Superintendent of Post Offices,

Pathanamthitta v. A. Gopalan, AIR 1999 SC 1514: 1997(11) SCC 239: 1998(9) JT 332:

1999(1) LLJ 1313: 1999 Lab IC 234: 1999(82) FLR 784: 2000(1) LLN 92; See also

Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh, 1994 Supp (3) SCC 628: 1994(6) JT

109:1994(5) SLR 534: 1994(28) ATC 594: 1994(69) FLR 1078: 1994(4) CCR 769(SC):

1995(2) LLJ 633: 1996(2) LLN 451; Govind Das v. State of Bihar, 1997(11) SCC 361.

13. Imposition of Penalty of Dismissal, Removal or Reduction in Rank —

Article 311 of Constitution provides:—

“(1) No person who is a member of a civil service of the Union or an all India

service or a civil service of a State or holds a civil post under the Union or a State shall

be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in

rank except after an inquiry in which he has been informed of the charges against him

and given a reasonable opportunity of being heard in respect of those charges:

Provided that where it is proposed after such inquiry, to impose upon him any

such penalty, such penalty may be imposed on the basis of the evidence adduced during

such inquiry and it shall not be necessary to give such person any opportunity of

making representation on the penalty proposed:

Provided further that this clause shall not apply:—

(a) where a person is dismissed or removed or reduced in rank on the

ground of conduct which has led to his conviction on a criminal

charge; or

(b) where the authority empowered to dismiss or remove a person or to

reduce him in rank is satisfied that for some reason, to be recorded by

that authority in writing, it is not reasonably practicable to hold such

enquiry; or

(c) where the President or the Governor, as the case may be, is satisfied

that in the interest of the security of the State it is not expedient to hold

such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is

reasonably practicable to hold such inquiry as is referred to in clause (2), the decision

thereon of the authority empowered to dismiss or remove such person or to reduce him

in rank shall be final.”

The penalty of removal from service cannot be imposed without recourse to

disciplinary proceedings. Uttar Pradesh Co-operative Land Development Bank Ltd. v.

Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC 741: 1999(1) CLT 134(SC):

1999(2) SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3) SLJ 124 .


14. Competent authority to impose penalty — For the penalties in relation to

Rule 11 of the CCS (CCA) Rules are as mentioned in items (i) to (ix), the authority

competent to impose the penalty is the Head of the Office. As a result, the Head of

Office, namely, the Assistant Manager was held to be the competent authority to

appoint. Once he is the competent authority to appoint, he is equally, the competent

authority to impose the penalty. Himachal Road Transport Corporation v. Kewal

Krishan, AIR 1997 SC 2667: 1997(9) SCC 39: 1997(2) SLR 580: 1997(76) FLR 233:

1997(2) SCJ 172: 1997 Lab IC 2652: 1998(1) LLJ 1058: 1998(1) SLJ 44: 1998(3) LLN

24. As regards competent authority to issue chargesheet, see Government of Tamil Nadu

v. S. Vel Raj, AIR 1997 SC 1900: 1997(2) SCC 708: 1997(1) JT 349: 1996(6) SLR 358:

1997(2) LLN 26: 1997(2) SLJ 32: 1997(3) LLJ 1; Inspector General of Police v.

Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC 145: 1996(6) JT 450: 1996 SCC(L&S)

433: 1996(32) ATC 663: 1996(2) SLR 470: 1996(1) UJ 424: 1996(74) FLR 2510:

1996(2) LLN 515: 1997(2) LLJ 191.

15. Application of Article 311 of Constitution — The first decision which has

now become a locus classicus on the subject is the decision in Parshottam Lal Dhingra

v. Union of India, 1958 SCJ 217: 1958 SCR 828: AIR 1958 SC 36. The principles that

were laid down in this case are as follows:—

(1) Article 311 of the Constitution of India makes no distinction between

permanent and temporary posts and extends its protection equally to all Government

servants holding permanent or temporary posts or officiating in any of them.

(2) The protection of Article 311 is available only where dismissal, removal or

reduction in rank is sought to be inflicted by way of punishment and not otherwise.

(3) If the termination of service or reduction in rank is not by way of

punishment, Article 311 is not attracted. To determine whether the termination or the

reduction is by way of punishment one has to consider whether the servant has the right

to hold the post from which he has been either removed or reduced. In the case of a

probationary or officiating appointment to a permanent or temporary post there is no

such right. This does not mean, however, that the termination of service or reduction in

rank of servant who has no right to the post there can never be dismissal or removal or

reduction by way of punishment. If Government expressly chooses to penalise the

servant for misconduct, negligence, insufficiency or the like by inflicting on him

punishment of dismissal, removal or reduction, the requirements of Article 311 must be

complied with.

(4) A reduction in rank must be a punishment if it carries penal consequences

with it and the two tests applied are:

(i) Whether the servant has a right to the post or the rank; and

(ii) Whether evil consequences such as forfeiture of pay and

allowances, loss of seniority in his substantive rank, stoppage or

postponement of future chances of promotion follows as a result

of the order ?


The principles formulated above have furnished the principal guidelines in all

future cases relating to dismissal, removal or reduction in rank of Government servants.

Depending on the nature and circumstances of each individual case it has often been

necessary for the Supreme Court to clarify and modify these principles.

In State of Punjab v. Sukh Raj Bahadur, (1968) 3 SLR 234: AIR 1968 SC 1089:

1968(3) SCR 234: 1968 SLR 701: (1969) 1 SCJ 51, after analysing the various

decisions the Supreme Court formulated the following propositions:

(1) The Services of a temporary servant or a probationer can be

terminated under the rules of his employment and such

termination without anything more would not attract the operation

of Article 311.

(2) The circumstances preceding or attendant on the order of

termination of service have to be examined in each case, the

motive behind it being immaterial.

(3) If the order visits the public servant with any evil consequences or

casts an aspersion against his character or integrity, it must be

considered to be one by way of punishment, no matter whether he

was a mere probationer or a temporary servant.

(4) An order of termination of service in unexceptionable form

preceded by an enquiry launched by the superior authorities only

to ascertain whether the public servant should be retained in

service, does not attract the operation of Article 311.

(5) If there be a full-scale departmental enquiry envisaged by Article

311 i.e. an Enquiry Officer is appointed, charge-sheet is

submitted, explanation called for and considered, any order of

termination of service made thereafter will attract the operation of

the said Article.

The Sukh Raj Bahadur”s case was followed in Ram Gopal Chaturvedi v. State

of M.P., (1970) 1 SCJ 257: 1970 (1) SCR 472: AIR 1970 SC 158: 1969(2) SCC 240:

(1969) 1 SCWR 1115. In State of U.P. v. Sughar Singh, 1974(2) SCR 335: AIR 1974

SC 423: 1974(1) SCC 218: 1974(1) SLR 435: 1974 Lab IC 353: 1974 SCC (Lab) 124,

the Supreme Court observed that sometimes in applying the principle of Parshotam Lal

Dhingra v. Union of India, AIR 1958 SC 36: 1958 SCR 828: 1958 SCJ 217 case to the

facts of a particular case, one aspect had to be emphasised in view of the peculiar

circumstances of that case and in doing so that court gave a special formulation which

covered the facts of that case. That principle was later found either inadequate or

inapplicable in another case where the facts and circumstances have been slightly

different and which called for emphasis on a different aspect of the rules. In this way

that court has found it necessary to mould the principles to suit the needs of the varying

circumstances of different cases. The original principles were not intended to be

abandoned but reshaping of the principles became necessary and even unavoidable to fit

them accurately and appropriately to new set of circumstances.


Also see Syn. 2, Syn. 3, Syn. 4 and Syn. 5.

16. Order Whether by Way of Punishment — In order to find out whether an

impugned order is one passed by way of punishment, the form in which the order is

expressed is not decisive, and the circumstances preceding or attendant of the order

have to be examined in each case. The motive behind the passing of the order is of no

consequence. Appar Apar Singh v. State of Punjab, 1971(2) SCR 890: 1970(3) SCC

338: (1971) 2 SCJ 566: (1971) 1 SCWR 226: 1971 SLR 71; Shamsher Singh v. State of

Punjab, AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831: 1974(2) SLR 701:

1974 Lab IC 1380; State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1977(1)

SCR 462: 1976(4) SCC 52: 1976 (2) SLR 859: 1976 SLJ 583; Oil and Natural Gas

Commission v. Md. S. Iskander, AIR 1980 SC 1242: 1980(3) SCR 603: 1980(3) SCC

428: 1980 Lab IC 698: 1980 (2) SLR 792: 1980 SLJ 591; Nepal Singh v. State of U.P.,

(1980) 2 SCJ 179: AIR 1980 SC 1459: 1980(3) SCR 478: 1980(3) SCC 402: 1980 Lab

IC 749: 1980 (2) SLR 108: 1980 SLJ 711; Union of India v. P.S.Bhatt, AIR 1981 SC

959: (1981) 2 SCJ 65: 1981 (1) SLJ 212: 1981 (1) SLR 370; Somnath Sahu v. State of

Orissa, 1981 (2) SLR 550; Commodore, Commanding, Southern Naval Area v. V.N.

Rajan, (1981) 2 SCJ 85: AIR 1981 SC 965: 1981(3) SCR 165: 1981(2) SCC 636: 1981

Lab IC 605: 1981 (1) SLR 656: 1981 (2) SLJ 48.

Mere holding of an enquiry does not ipso facto make the order of termination

penal in nature, once the employer wishes not to continue the enquiry in exercise of his

right in accordance with the terms of appointment. The enquiry held prior to the order

of termination cannot turn otherwise innocuous order into one of punishment. An

employer is entitled to satisfy itself as to the competence of a probationer to be

confirmed in service and for this purpose satisfy itself fairly as to the truth of any

allegation that may have been made about the concerned employee. Shailaja Shivajirao

Patil v. President Hon. Khasdar UGS Sanstha, 2002(1) SLR 371 (SC): 2002(1) JT 431;

relying upon Pavenendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences,

AIR 2002 SC 23: 2001(1) SCC 520: 2001(9) JT 420 (SC): 2001 AIRSCW 4616: 2001

AllLJ 2807: 2002(1) AllMR 302: 2002(1) AllWC 42: 2002(1) Andh LD 81: 2002(100)

FJR 64: 2002(92) FLR 349: 2002(1) Mad LJ 151: 2002(2) Mah LR 374: 2002(1) Pat

LJR 204: 2002 SCC (L&S) 170: 2002(2) SLJ 336: 2001(8) SLR 722.

In one case the termination was ordered on account of the conviction which

was ultimately set aside in appeal and substituted with acquittal. Termination though

effected after payment of retrenchment benefit, it was held that the order of termination

being punitive and stigmatic and in violation of principles of natural justice is not

sustainable. Nar Singh Pal v. Union of India, AIR 2000 SC 1401: 2000(3) SCC 588:

2000(3) JT 593: 2000(96) FJR 502: 2000(2) SLR 592 (SC): 2000(3) SLJ 332: 2000 Lab

IC 1377: 2000(85) FLR 458.

In another case charge sheet was issued to Probationer and summary inquiry

was held in the matter. The Inquiry Officer finding nothing more than inability of the

employee to meet the requirement of the post. Order of termination passed immediately

thereafter was held to be not stigmatic. Parvanendra Narayan Verma v. Sanjay Gandhi

P.G.I. of Medical Sciences, AIR 2002 SC 23: 2002(1) SCC 520: 2001(9) JT 420:

2002(1) LLJ 690: 2001(8) SLR 722 (SC): 2001 AIRSCW 4616: 2001 All LJ 2807:


2002(92) FLR 349: 2002(100) FJR 64: 2002(1) Mad LJ 151: 2002(2) Mah LJ 151:

2002(1) Pat LJR 204: 2002 SCC(L&S) 170: 2002(1) SLJ 336.

The employer is entitled to engage the service of a person on probation. During

the period of probation, the suitability of the recruit/appointee has to be seen. If his

services are not satisfactory which means that he is not suitable for the job, then the

employer has a right to terminate the services as a reason thereof. If the termination

during probationary period is without any reason, perhaps such an order would be

sought to be challenged on the ground of being arbitrary. Therefore, normally, services

of an employee on probation would be terminated, when he is found not to be suitable

for the job for which he was engaged, without assigning any reason. If the order on the

face of its states that his services are being terminated because his performance is not

satisfactory, the employer runs the risk of the allegation being made that the order itself

casts a stigma. Normally, therefore, it is preferred that the order itself does not mention

the reason why the services are being terminated. Krishnadevaraya Education Trust v.

L.A. Balakrishna, AIR 2001 SC 625: 2002 SCC(L&S) 53: 2001(1) JT 617: 2001(1) SLR

635 (SC): 2001 Lab IC 642: 2001 AIRSCW 253: 2001 AIR Kant HCR 2152: 2001(1)

Cur LR 534: 2001(2) LRI 1248.

In case of refusal to extend period of probation It was held that no Court can

direct an authority to extend the period of probation. Order of termination being

exfacie not stigmatic in nature it was held that no interference can be made with the

order of termination. Deputy Inspector General of Police, Kurnool v. R.S. Madhu Babu,

2002(2) SLR 525 AP (DB).

17. No Penalty After Retirement — It is now well settled that a disciplinary

proceeding against a Government servant comes to an end when he retires and there is

no power in Government to retain him in service so that a punishment may be imposed

on him in a pending disciplinary proceeding. K.S. Rajasekhriah v. State of Mysore,

1968 SLR 269; Subba Rao v. State of Mysore, 1963 (1) Mys LJ 80; A.R.R. Deshpande

v. Union of India, (1971) 2 SLR 776; O.P.Gupta v. Union of India, 1981 (3) SLR 778;

Mukhtiar Chand Dhir v. State of Punjab, 1982 (1) SLR 889.

In one case, in the service rules no specific provision was made for deducting

any amount from the provident fund consequent to any misconduct determined in the

departmental enquiry nor was any provision made for continuance of departmental

enquiry after superannuation. Held that in view of the absence of such provisions in the

abovesaid regulations, it must be held that the Corporation had no legal authority to

make any reduction in the retiral benefits of the appellant. There is also no provision for

conducting a disciplinary enquiry after retirement of the appellant and nor any

provision stating that in case misconduct is established, a deduction could be made

from retiral benefits. Bhagirathi Jena v. Board of Directors, O.S.F.C., 1999(3) SCC

666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999

Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143: 1999(95) FJR 21: 1999(3)

SLJ 294.

When no disciplinary action is initiated under All India Service Rules while the

employee was in service disciplinary action cannot be taken after the retirement of the

employee and similar proceedings initiated under State Rules prior to promotion of the


candidate to All India Service cannot be continued after such promotion. State of

Rajasthan v. P.D. Paliwal, 2002(2) SLR 164 Raj (DB).

In another case it was held that the Government can conduct inquiry into

misconduct, negligence or financial irregularity even after retirement of an employee.

D.C. Mazumdar v. Union of India, 1999(5) SLR 338 Delhi (DB): 1999(77) DLT 442:

1999(1) AD(Delhi) 649: 1999(1) LLJ 871.

The enquiry proceedings can be legally continued against the officer even if he

has been prematurely retired from service. P.K. Jain v. State of Haryana, 1999(1) SLR

337 P&H (DB); relying upon Ishar Singh v. State of Punjab, 1994(3) Recent Services

Judgments (RSJ) 543: 1993(4) SLR 655 (P&H) (FB).

MINOR PENALTIES

CLAUSE (i)

Censure

18. Warning When Censure — Disciplinary authority issued warning

intended to be taken into consideration for assessing the official career of petitioner.

Copy of the order placed in the character roll of the petitioner. Such a “warning”

amounts to penalty of “censure” on the finding that he was guilty of misconduct.

Nadhan Singh v. Union of India, 1969 SLR 24 (Delhi).

19. Warning: Promotion — If “Warning” given to any employee without

hearing him, cannot be used against the employee who is warned, when considering his

suitability for promotion. Madhavan v. CIT, (1983) 1SLJ 240: (1982) 2 SLR 607 (Ker).

20. Show Cause Notice: Vague — Show cause notice was served and

appellant filed the reply. Penalty of censure was imposed on him. Held, show cause

notice was too vague to permit the appellant to give an effective reply and the order was

therefore struck down. B.D. Gupta v. State of Haryana, AIR 1972 SC 2472: 1973(2)

SCR 323: 1973(3) SCC 149: 1972 SLR 845: (1973) 1 SCJ 376.

21. Censure, No Ground for Overlooking Seniority for Promotion — Censure by itself is not a ground for overlooking seniority in the matter of promotion.

S. Mukandan Menon v. State of Kerala, 1970 Lab IC 897: 1970 SLR 586.

CLAUSE (ii)

Explanation (i)

Withholding of promotion, Non-promotion, Promotion

22. Promotion, Rules be Followed — (i) If there are rules for any class, that

class must be governed by these rules, and the recruitments, promotions, seniority etc.,

must be in accordance with those rules. Lehna Singh v. Punjab State, 1970 SLR 844:

AIR 1971 Pun 198. Even in matters of privileges as that of promotion in view of Article

16 of the Constitution which has introduced a concept of rule of law, the State cannot

act arbitrarily. The State must show appropriate statutory rule or principle showing

rational purpose for its action which relates to the function the State performs in

passing any such order to the detriment of the concerned Government servant. V.L.

Poonekar v. L.S. Kaul, 1969 Lab IC 1019.


(ii) Promotion by Mistake in Contravention of Rules, Mistake can be

Rectified — The petitioner was promoted by the Collector on the basis of merit.

Relevant rules did not provide for promotion on the basis of merit. Collector issued

another order by which the earlier order of promotion of petitioner was revoked. Order

of Collector upheld. Gulab Chand v. State of Rajasthan, 1979 SLJ 163.

23. Promotion Rules, Change of — It is open to the rule-making authority to

change the rules from time to time and in doing so it is empowered to change the

method of selection according to exigencies of service. Durga Dass v. Union of India,

1969 SLR 278 (Delhi).

It is well settled that rules made under the proviso to Art. 309 are legislative in

character and can be given retrospective effect. The conditions of service could not

however be altered to the disadvantage of petitioners by retrospective amendment of the

Rules. N.C. Singhal v. Director-General of Armed Forces, AIR 1972 SC 628: 1972(4)

SCC 765: 1972 SLR 178: 1972 Lab IC 342; C.Cheluvaiah v. State of Karnataka, 1979

(3) SLR 24. The new rules will not operate to deprive any person of promotions already

earned in the past. Wg. Commander J. Kumar v. Union of India, 1982 (1) SLJ 452: 1982

(1) SLR 715: 1982 Lab IC 1586: AIR 1982 SC 1064: 1982(3) SCR 453: 1982(2) SCC

116.

24. Promotion, Relaxation of Rule in Case of Scheduled Castes and Scheduled Tribes — Where the rule provided that no officer will be eligible for

promotion unless he has passed the departmental examination in all subjects by the

higher standard but the rule was relaxed in the case of Scheduled Castes and Scheduled

Tribes employees and they were given an extended period of two years for passing the

special test of departmental examination by the higher standard for promotion, the

relaxation was not in violation of Art. 16. Laxman Prasad Sinha v. State of Bihar, 1979

(3) SLR 389; State of Kerala v. N.M. Thomas, AIR 1976 SC 490: 1976(1) SCR 906:

1976(2) SCC 310: 1976 Lab IC 395: 1976 (1) SLR 805. See also Akhil Bhartiya Soshit

Karamchari Sangh (Railway) v. Union of India, 1980 (3) SLR 645.

25. Promotion, Administrative Instructions — In absence of statutory rules

the State Government may issue administrative instructions in the matter of principles

to be followed for promotion. Ranjit Singh v. President of India, 1971 (2) SLR 561

(Punjab). These instructions must be followed: G.C. Dhiman v. State of H.P., 1979 (1)

SLR 532.

Any directive which superimposes a new criterion on the rules will be bad as

lacking in jurisdiction. No one can issue a direction which in substance and effect

amounts to an amendment of the rules made by the President under Art. 309.

S.L.Sachdev v. Union of India, 1980 (3) SLR 503: 1981 (1) SLJ 115 (SC): AIR 1981 SC

411: 1981(1) SCR 971: (1980) 4 SCC 562: 1980 Lab IC 1321.

Right of consideration for promotion available under statutory rules cannot be

taken away by an administrative order which is in the nature of a suggestion to the

Government to exclude a particular category of people from consideration. Provisions

of statutory rules cannot be taken away by a suggestion of the executive until and


unless the rules are appropriately amended. N.K. Pankajakshan Nair v. P.V. Jayaraj,

2001(3) SLR 580 (SC): 2001(4) JT 406: 2001(2) KLT 141.

26. Promotion in Defence Services, Executive Power of Government to Formulate Policy — The executive power of the Union of India, when it is not

trammelled by any statute or rule, is wide and pursuant to its power it can make

executive policy. A policy once formulated is not good for ever, it is perfectly within

the competence of the Union of India to change it, rechange it, adjust it and re-adjust it

according to the compulsions of circumstances and imperatives of national

considerations. But one imperative of the Constitution implicit in Art. 14 is that if it

does change its policy, it must do so fairly and should not give the impression that it is

acting by any ulterior criteria or arbitrarily. So, whatever policy is made should be done

fairly and made known to those concerned. Col. A.S. Sangwan v. Union of India, AIR

1981 SC 1545: 1980 Supp SCC 559: 1981 Lab IC 831: 1980 (2) SLR 1.

27. Promotion, Principle of — The principle of “seniority-cum-fitness” or

“seniority-cum-merit” has generally been applied at the lower levels of service where

the duties are of a routine nature. It has also been applied in promotions from a junior

scale post to a senior scale post within the same service. But when the question arises of

appointment to a higher service consisting of posts carrying superior responsibility the

emphasis shifts from “seniority- cum - fitness” to “merit-cum-seniority”. Hari Dutt

Kainthla v. State of H.P., 1974 (1) SLR 208: 1974 SLJ 525 (FB), see also Hari Dutt

Kainthla v. State of H.P., AIR 1980 SC 1426: 1980(3) SCR 363: 1980(3) SCC 189:

1980(2) SLR 154: 1980 Lab IC 825.

Unless the rules show that a particular promotion should be based principally

on the principle of selection, the formula of merit-cum-seniority should be applied, and

the normal principle of seniority-cum-merit should be followed. D.K. Bhatnagar v.

State of H.P., 1979 (2) SLR 693.

28. Employee Cannot Compel that he be Appointed or Promoted — (i) No

employee can compel appointing authority to appoint him to a particular post or to

promote him to a higher category. All that he is entitled to is that his case be

considered. University of J. & K. v. Dharamvir, 1973 (1) SLR 337: Karam Singh

Grewal v. State of Punjab, 1975 (2) SLR 189: 1976 SLJ 189.

(ii) Employee Put on a Panel for Promotion — The circumstances that the

appellant was put on a panel for promotion does not mean that he would be

automatically promoted to the higher post. Being empanelled for promotion confers

upon the person concerned the limited right of being considered for promotion at the

given moment. Events subsequent to the formation of panel may render any person,

who is included in the panel, unfit for promotion. N.M. Siddiki v. Union of India, AIR

1978 SC 396: 1978(2) SCC 349: 1978(2) SCC 349: 1978(1) LLJ 212: 1978 SLJ 576:

1978 (1) SLR 279 (SC).

29. Promotion cannot be Claimed as a Matter of Right — When the

promotion is based on seniority-cum-merit, the officer cannot claim promotion as a

matter of right. If he is found unfit to discharge the duties of the higher post, he may be

passed over and an officer junior to him may be promoted. State of Mysore v. S.


Mahmood, AIR 1968 SC 1113: 1968(3) SCR 363: 1968 SLR 738; Lal Chand Pargal v.

Director, N.E.S., AIR 1970 J& K 57 (FB); Lalit Mohan Deb v. Union of India, AIR

1970 Tripura 10.

(i) Officer cannot Claim to be Included in I.A.S. Select List as a Matter of

Right — The Select List is prepared by the Select Committee on consideration of the

merits on the basis of suitability of the officer concerned and recommendations made

by the Selection Committee have to be approved by the Union Public Service

Commission. An officer cannot claim to be included in the Select List as a matter of

right. Gurdial Singh Fiji v. State of Punjab, 1981 (2) SLJ 457: 1982 (1) SLR 651 (SC).

30. Promotion Case Considered — Promotion case of employee considered.

No case for employee. Bikkar Singh v. State of Punjab, 1968 SLR 808; Union of India

v. Durgadas, AIR 1978 SC 1132: 1979(1) SCC 59: 1978 (2) SLR 103: 1978 SLJ 575;

Rameshwar Prasad v. State of Bihar, 1980(1) SCR 456: AIR 1980 SC 104: 1979(4)

SCC 368: 1980 Lab IC 1: 1979(2) SLR 390: 1979 SLJ 573: 1979 SCC (Lab) 371: 1979

BLJ 597: ILR (1979) HP 184: 1980(1) SCWR 116.

Promotion made on basis of seniority can be legally adopted as reasonable

basis for promotion, Vimal Kumari v. State of Haryana, (1998) 2 SCJ 99. For

promotion of employee lower in seniority list see Siya Ram v. Union of India, AIR 1998

SC 1470: 1998(2) SCC 556: 1997(10) JT 149: 1997(6) SLR 624: 1998 Lab IC 885:

(1998) 1 SCJ 260..

31. Non-consideration for Promotion — The appropriate authority is bound

to take the claims of all persons entitled to promotion under consideration. Non-

consideration of claim of an employee, otherwise qualified for consideration, vitiates

the exercise of jurisdiction in the matter and subjects the action to the scrutiny of the

court. Anil Chandra v. State of Orissa, AIR 1970 Orissa 19; B.Chandragupta v.

Chairman, Post and Telegraph Board, 1970 SLR 284. See also Dr. Kartar Singh Rai

v. State of Punjab, AIR 1970 Punjab 112; Ram Sarup v. State of Punjab, 1982 (2)

SLR 362.

State Government while promoting the respondents did not consider the cases

of appellants who were entitled to promotion on merit although in fact most of the

appellants were senior to some of the respondents. The service records of some of the

respondents were sent to the Public Service Commission but those of the appellants

were not sent at all to the Public Service Commission as a result of which the cases of

appellants could not be considered even by the Commission. Held, there has been a

clear violation of Articles 14 and 16 of the Constitution. Order of promotion of

respondents quashed. Sheo Dayal Sinha v. State of Bihar, 1981 (2) SLR 1: AIR 1981

SC 1543: 1982(1) SCC 373: 1981 Lab IC 819.

32. Non-consideration for Promotion as Post Temporary or on ad hoc Basis— An employee has a right to ask for consideration of his claim for promotion

along with others who are similarly situated even though it may be a case of temporary

appointment or the post is on ad hoc basis. Gordhan Lal v. S.K. Durgia, 1977 SLJ 131:

1977 (1) SLR 531.


33. Non-consideration for Promotion as Working Somewhere Else — One

who has been granted pro forma promotion on account of the fact that he has been

working somewhere else and has been continuing his lien in the parent post would also

entitle him to be considered for promotion. Anil Chandra v. State of Orissa, AIR 1970

Orissa 19.

The fact that the appellant was transferred or deputed to another department

temporarily would not be made a point against him for non-consideration of his claim

for promotion and for giving other juniors promotion over his head during his

deputation or transfer. Ramnarayan Chand v. State of Rajasthan, 1981 (1) SLR 85.

34. Non-consideration for Promotion When Enquiry is Pending — If there

is no suspension and the officer continues to work, the pendency of enquiry need not

prevent his being either promoted, reverted or transferred in accordance with exigencies

of administration. D. Srinivasa Iyer v. State of Mysore, 1971 Lab IC 937: 1971 (1) SLR

202; Balbir Singh v. State of Punjab, 1975 (1) SLR 241. It is now well settled that mere

pendency of disciplinary proceedings cannot be a ground for withholding promotion, if

a Government employee is otherwise eligible to be promoted in accordance with the

rules. [Vagadiswara Rao v. Postmaster General, A.P., 1978 SLJ 210]. The authorities

concerned have to consider the case of an employee for promotion and his case need not

be postponed due to pendency of disciplinary proceedings against him. K. Samaiah v.

Zonal Manager, Food Corporation of India, 1978 SLJ 295; K.V. Subrahmanyam v.

Zonal Manager, Food Corporation of India, 1979 (3) SLR 453; Director of Postal

Services v. C. Muneswara Rao, 1980 (2) SLR 662; Rup Lal v. State of H.P., 1980

SLJ 348.

By now it is well laid down that a public servant whose consideration for

promotion has been passed over on account of the pendency of any departmental

enquiry against him, has to be considered for such promotion on his exoneration with

effect from the date of his juniors were promoted. Digamber Lal Jain v. State of

Haryana, 1982 (2) SLJ 536: (1983) 1 SLR 142, 143 (P&H).

However in case of undue delay in initiating the disciplinary proceedings it was

held that such pendency cannot stand in the way of promotion. State of Punjab v.

Chaman Lal Goyal, 1995(2) SCC 570: 1995(1) UJ 552: 1995(29) ATC 546: 1995(1)

SLR 700: 1995(2) SLJ 126: 1995(2) LLJ 679: 1995(70) FLR 834. Similarly denial of

promotion due to pendency of departmental inquiry for seven years was held to be not

proper and directions were given for promotion from the date on which juniors were

promoted. N.H. Mehta v. State of Gujarat, 2002(3) SLR 768 Guj.

35. Non-consideration for Promotion for being Punished for

Insubordination — The fact that the appellant was once suspended and punished for

some charge of insubordination in a disciplinary inquiry should not and cannot by itself

disqualify him for promotion, if he was otherwise suitable for being promoted, because

he was exonerated from the charge on appeal. Ramanaryan Chand v. State of

Rajasthan, 1981 (1) SLR 85.

36. Non-promotion for Remarks in Confidential Report — (i) Remarks in

character roll were not communicated to the petitioner and his case was not considered


for promotion. Impugned order of promotion quashed. Vaidyanath Prasad v. State of

Bihar, 1969 SLR 648; P.R. Mohanty v. Union of India, 1975 (1) SLR 230: S.R.

Kesharwani v. State of M.P., 1978 (1) SLR 627: 1976 SLJ 173; H. Veerabhadrappe v.

Deputy Commissioner, Raichur, 1980 (2) SLR 62: 1980 SLJ 602; M.S. Sharma v. State

of A.P., 1982 Lab IC 619; Rakesh Pal Rana v. Union of India, 2002(1) SLR 643 Gau.

High court is not right in holding that order of compulsory retirement is

malafide and is in effect of an order of punishment. See State of Madhya Pradesh v.

Indra Sen Jain, AIR 1998 SC 982: 1998(1) SCC 451: 1997(9) JT 230: 1988(1) SLR 67:

(1998) 1 SCJ 305.

(ii) Supreme Court in Parvez Qadir v. Union of India 1975 (1) SLR 4: 1975

SLJ 130 held, “We do not think that the method of selection based on past performance

as disclosed by the confidential records is not the proper method for adjudging

suitability of the officer concerned.”

The reporting officer had described the petitioner as a mediocre officer and had

cast doubts about his moral character. These remarks had been duly communicated to

the petitioner earlier. Further reports were of the same character which were also

communicated to him. The order promoting his juniors who had better record was

upheld. Bansi Ram Sharma v. State of H.P., 1982 (1) SLJ 140: 1982 (1) SLR 378.

Adverse entry prior to promotion or putting of efficiency bar of picking up of

higher rank, is not wiped out and the same has to be taken into consideration otherwise

it will not be a case of examining the entire record. Banshi Lal Nayati v. State of

Rajasthan, 1999(3) SLR 187 Raj.

If a candidate was ignored for promotion for there being adverse remarks in his

confidential report which was either not communicated to him or communicated at a

stage when he could not put in a meaningful representation and for that reason the same

were quashed or expunged, it shall be deemed that no such remarks were there in

existence at the time when petitioner was ignored for promotion. The respondent was,

thus, enjoined to consider the case of the petitioner from a date when he was wrongly

ignored. Dharam Pal Panwar v. State of Haryana, 1999(3) SLR 161 P&H (DB).

37. No Enquiry is Required to Decide not to Promote — Under Rule 11

although withholding promotion is one of the penalties which can be imposed on a

Government servant, the explanation thereto expressly provides that non-promotion of a

Government servant after consideration of his case does not constitute a penalty. There

was no question of the department having to hold an enquiry and then only to decide

not to promote the appellant to the higher post. No question of breach of the principles

of natural justice arises in such a situation. R.L.Butail v. Union of India, (1970) II

SCWR 561: (1970) 2 SCC 876: 1970 SLR 926: (1971) 2 SCJ 566.

38. No Right to Claim Promotion Till Cadre Constituted — A cadre has to

be expressly created. No legal right to claim promotion to a post in the department

unless cadre is formally constituted and rules for recruitment, promotion etc., framed.

M G. Sharan v. State of Bihar, AIR 1970 Patna 25.


39. Not Considered for Promotion as Took Part in Strike — Home Ministry

issued orders that adverse entry in the character roll of an employee who took part in

the strike would be taken into consideration for promotion or confirmation and all

employees who were on unauthorised absence on September 19, 1968 would suffer the

consequences of strike for five years. Held, the petitioner obviously became ineligible

for promotion for five years as he had participated in the general strike and could not be

considered for promotion in July 1969 when other persons were selected. Shiv Singh v.

Union of India, 1973 (1) SLR 244: AIR 1973 SC 962: 1974(3) SCC 255: 1973

Lab IC 227.

40. Non consideration for promotion due to disciplinary punishment — The

name of the employee not included in the list drawn for promotion as Deputy Tahsildars

on the ground of punishment imposed after disciplinary proceedings was for stoppage

of increment. It was held that the denial of promotion would not amount to penalty.

Collector of Thanjavur Distt. v. S. Rajagopalan, 2000(9) SCC 145: 2000(3) JT 376:

2000(2) SLR 552: 2000(2) LLN 415: 2000(85) FLR 381.

Once an order of punishment is passed finally, the delinquent would only suffer

the legal consequences arising from that order and it would not be permissible to go

back to the charge to deny him promotional benefits. Otherwise it would amount to

punishing a delinquent employee twice over for the same charge(s). Dhirendra Nath

Saha v. State of Bihar, 1999(3) SLR 135 Pat.

Reduction in basic pay by one stage in the time scale of pay on permanent

basis, held to be major penalty under the rules but the High Court acting on the wrong

concession of the counsel holding it to be minor penalty and directing for consideration

for promotion. Held that when this mistake was pointed out to High Court it should

have really reviewed its earlier order but it having failed to do so, the High Court

judgment was set aside by Supreme Court. Oriental Insurance Co. Ltd. v. Gokulprasad

Maniklal Agarwal, AIR 1999 SC 3407: 1999(7) SCC 578: 1999(2) LLJ 1413: 1999(4)

LLN 22: 1999(83) FLR 361: 1999(5) SLR 485: 2000(3) SLJ 127.

41. Consideration of Case for Promotion Long Before Vacancy Arises — The right to have one”s case considered for promotion arises or can be claimed by a

Government servant only when a vacancy arises in the promotional cadre and he

occupies a position of seniority or sufficient seniority in the lower cadre which obliges

the Government to take his case also into consideration. If, therefore, a person”s case

for promotion is taken for consideration long before a vacancy arises the appointing

authority is actually trying to confer upon him a right which he does not then possess.

N. Sreenath v. State of Mysore, 1973 SLJ 41: 1972 SLR 449; Surendra P. Gupta

v.D.E.S.U (1973) 1 SLR 227.

42. Pleading Cause for Promotion by M.L.A. — Vacancies in Bihar Junior

Civil Service were to be filled- up by promotion giving chances to non-gazetted

government servants of all Departments. Two M.L.A.”s wrote a letter to the Minister

and advocated the cause of R.7. The Minister directed to send five names and indicated

the preference of R.7 at No. 2 R.7 applied to Chief Engineer that adverse entry in his

character roll may be expunged. The Chief Engineer rejected the prayer. An M.L.A.

wrote a letter to the Minister complaining about the allegedly illegal and unjustifiable


adverse entry made against R. 7 and the said entry was expunged. Untwala J., observed

“The facts are coercively telling to invite the remark that R.7 instead of doing work in

the office to the satisfaction of his own office bosses was out to please some Minister

and members of the Legislature and sought their help to pull him out of the ditch in

which he found himself on the opinion of his bosses, the Chief Engineer, the Deputy

Secretary and the Secretary”. Order set aside and Government ordered to reconsider the

matter. Shyam Sunder Sen v. State of Bihar, AIR 1972 Patna 44.

43. Promotion, Higher Educational Qualification: No proof of more

merit — Mere possession of higher educational qualifications cannot by itself be taken

to be proof of more merit in a particular officer. Dr. Kartar Singh v. State of Punjab,

AIR 1970 Punjab 112 (FB); Karmon Devi v. State of J & K, 1970 SLR 878; S. Joginder

Singh Grewal v. State of Punjab, 1970 SLR 892.

44. Promotion, Keeping of in Abeyance — A well established proposition in

the matter of enforceability of service conditions is that promotion can never be

claimed as a matter of right. At the same time, the constitutional principle of equality

enshrined in Articles 14 and 16 requires that where occasion arises for consideration the

competing claims for promotion of more Government servants than one, each one of

them is entitled to his case being considered on merits, The power to keep such

consideration in abeyance or to postpone actual grant of promotion which might

otherwise be available to a person is a power which curtails the rights and the

constitutional protection thereof appertaining to the position of a public servant. B.

Chandra Gupta v. Chairman, P&T Board, 1970 SLR 284: 1970 Lab IC 945 (Mysore).

45. Promotion, Principles of Natural Justice Cannot be Applied — Principles of natural justice cannot be applied to matters of promotion which are purely

administrative in nature. There was no question of giving a reasonable opportunity to

the Government servant of being heard before promotion is refused to him unless the

appointing authority withholds promotion by way of penalty. Lal Chand Pargal v.

Director, NES, AIR 1970 J & K 57 (FB); T.K. Sukumaran v. State of Kerala, 1981 (1)

SLR 332.

46. Punishment of Censure no bar for Promotion — Censure by itself is not

a ground for overlooking seniority in the matter of promotion. S. Mukandan Menon v.

State of Kerala, 1970 SLR 586.

47. Departmental Enquiry and Promotion — By now, it is well laid down

that a public servant whose consideration for promotion has been passed over on

account of the pendency of any departmental enquiry against him, has on his

exoneration, to be considered for such promotion with effect from the date his juniors

were promoted. Digambar Lal Jain v. State of Haryana, (1983) 1 SLR 142, 143 para 1:

(1982) 2 SLJ 536 (P&H).

48. Promotion and sealed cover procedure — When a departmental

proceedings is already pending but no punishment has been inflicted upon and the

question of promotion of the delinquent government servant arises then the

Departmental Promotion Committee can adopt a sealed cover procedure which is well

known in the service jurisprudence. But if the departmental proceeding culminates in


imposition of a punishment on the delinquent, the question of reconsideration of the

delinquent”s case for promotion would not arise at that stage. State of Rajasthan v.

M.C. Saxena, 1998(3) SCC 385: AIR 1998 SC 1150: 1998(1) SLR 787: 1998(1) LLJ

1244: 1998(79) FLR 140: 1998(3) SLJ 10: 1998 Lab IC 1038: 1998(93) FJR 582:

2000(1) LLN 35.

Disciplinary proceedings in the first enquiry ended in employee”s favour but

another departmental enquiry was initiate by the time the sealed cover was to be

opened. The right to be considered by the Departmental Promotion Committee is a

fundamental right guaranteed under Article 16 of the Constitution of India, provided a

person is eligible and is in the zone of consideration. The sealed cover procedure

permits the question of his promotion to be kept in abeyance till the result of any

pending disciplinary inquiry. But the findings of the Disciplinary Enquiry exonerating

the officer would have to be given effect to as they obviously relate back to the date on

which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if

the officer had not been subjected to any Disciplinary Enquiry. The sealed cover

procedure was envisaged under the rules to give benefit of any assessment made by the

Departmental Promotion Committee in favour of such an officer, if he had been found

fit for promotion and if he was later exonerated in the disciplinary inquiry which was

pending at the time when the DPC met. Held that the mere fact that by the time the

disciplinary proceedings in the first inquiry ended in his favour and by the time the seal

was opened to give effect to it, another departmental enquiry was started by the

department, would not come in the way of giving him the benefit of the assessment by

the first Departmental Promotion Committee in his favour in the anterior selection.

Delhi Jal Board v. Mahinder Singh, AIR 2000 SC 2767: 2000(7) SCC 210: 2000(2) LLJ

1604: 2000(5) SLR 274: 2000(4) LLN 560: 2000(87) FLR 130

In another case allegation was that charge sheet was deliberately issued and

interim relief of promotion pending petition before the Tribunal was sought and

granted. Held that the question whether the charge-sheet was deliberately issued to

prompt the Departmental Promotion Committee to take recourse to the “Sealed Cover

Procedure” is a question of fact which has yet to be decided by the Tribunal on merits

on the basis of the evidence which might be led by the parties. That being so, it can

hardly be made a basis for interim relief. State of Madhya Pradesh v. J.S. Bansal,

1998(3) SCC 714: AIR 1998 SC 1015: 1998(1) JT 514: 1998(78) FLR 600: 1998(1)

SLR 773: 1998(1) LLJ 1221: 1998(2) SLJ 274: 1998 Lab IC 998: 1998(3) LLN 58.

However in another case due to pendency of disciplinary proceedings sealed

cover procedure was adopted and minor penalty was imposed by the disciplinary

authority. In regard to the date of promotion it was held that employee concerned can

be considered for promotion on prospective basis from a date after the conclusion of the

departmental proceedings. State of Madhya Pradesh v. I.A. Qureshi, 1998(9) SCC 261

see also Union of India v. J.K. Goel, 1995 Supp (3) SCC 161: 1997(10) JT 526: 1995(3)

Scale 550: 1995(2) UJ 179: 1995(30) ATC 614.

If on the date on which the name of a person is considered by the Departmental

Promotion Committee for promotion to the higher post, such person is neither under

suspension nor has any departmental proceedings been initiated against him, his name,


if he is found meritorious and suitable, has to be brought on the select list and the

“sealed cover” procedure cannot be adopted. The recommendation of the Departmental

Promotion Committee can be placed in a “sealed cover” only if on the date of

consideration of the name for promotion, the departmental proceedings had been

initiated or were pending or on its conclusion, final orders had not been passed by the

appropriate authority. Union of India v. Sudha Salhan, 1998(3) SCC 394: AIR 1998 SC

1094: 1998(1) JT 622: 1998(1) SLR 705: 1998(5) SLR 473: 1998(2) SLJ 265: 1998(2)

LLJ 241: 1998 Lab IC 957: 1998(2) LLN 385.

49. Promotion, “Next Below Rule” Explained — An officer on deputation in

another department on reversion to his parent department was entitled to be restored to

the position he would have occupied in his parent department had he not been deputed.

As he rendered satisfactory service and was considered fit for obtaining increments and

promotions in the new department, he should be deemed to be fit for promotion in the

parent department and was entitled to promotion in that department, when an officer

next below to him there was getting promotion based on seniority-cum-merit. In official

language, this is the “next below rule” under which an officer on deputation is given a

paper promotion and shown as holding a higher post in the parent department of the

officer next below him there is being promoted. State of Mysore v. H.M. Bellay, (1964)

7 SCR 471: AIR 1965 SC 868: (1965) 1 SCJ 311.

50. Promotion on the Basis of Seniority-cum-merit or Fitness — (i)

Recruitment rules provided that promotion should be made on basis of seniority-cum-

fitness. Post, not a selection post. Eligible persons be considered. Government ordered

to consider case of respondent on the date other respondent was promoted. Government

of India v. C.A. Balakrishnan, 1975 (1) SLR 31: 1975 SLJ 250: AIR 1975 SC 1498:

1975(3) SCC 256; K. A. George v. General Manager, Telecommunications, 1982 (2)

SLJ 92.

For “Two Stream Concept” in promotion see Union of India v. W.S. Chona,

AIR 1998 SC 2919: 1998(2) SCC 213: 1997(9) JT 347: (1998) 1 SCJ 336.

(ii) A Public servant placed in the list of seniority where selection for

promotion to the next higher grade is on the basis of seniority-cum-merit, is entitled, on

the plea that list is contrary to rules governing seniority, to claim relief on the footing

that he is deemed equality of opportunity in matters related to employment Union of

India v. V.J. Karnik, (1970) II SCWR 480: 1970 SLR 813.

51. Promotion cannot be Claimed by Seniority Alone — Where the

promotion is based on seniority-cum-merit, the officer cannot claim promotion as a

matter of right by virtue of his seniority alone. If he is found unfit to discharge the

duties in the higher post, he may be passed over and an officer junior to him may be

promoted. State of Mysore v. Syed Mahmood, (1968) 2 SCJ 13: (1969) 2 SCWR 158:

1968 SLR 333: AIR 1968 SC 1113: 1968(3) SCR 363; State of Mysore v. C.R. Seshadri,

AIR 1974 SC 460: 1974(3) SCR 87: (1974)4 SCC 308: 1974 (1) SLR 407: 1974 SLJ

209: (1975) 1 SCJ 64; L.B. Lall v. State of Bihar, 1975 Lab IC 1476; G.C. Broca v.

State of J&K, 1981 (3) SLR 403 (SC).


52. Promotion as Addl. District and Sessions Judge — Once it is found that

experience as Civil Judge Class I at least for a short period is a necessary qualification

for promotion as Addl. District and Sessions Judge and that such a requirement has a

rational relation to the question at issue, it would be surprising to hold that a man, who

again and again had been found unfit to be posted as Civil Judge Class I in comparison

with others who were his juniors in the service, his claim for promotion should be

decided not on the basis of the date on which he was found fit to exercise the power of

Civil Judge Class I, but on the basis of the date of his entry into service. Registrar of

High Court v. B.A. Nigam, AIR 1973 SC 1271: 1973(3) SCR 878: 1973(4) SCC 219:

1973 SLJ 752.

Governor accepting the recommendations of the High Court superseding the

petitioner appointed other subordinate Judges as Addl District Judge. There is abundant

material on record to show that the case of petitioner was fully considered by High

Court and he was not considered fit for promotion. Government also considered the

case of petitioner. Articles 14 and 16 are not attracted. Rameshwar Prasad v. State of

Bihar, 1980(1) SCR 456: AIR 1980 SC 104: 1979(4) SCC 368: 1980 Lab IC 1: 1979(2)

SLR 390: 1979 SCC (Lab) 371: 1979 BLJ 597: 1980(1) SCWR 116. Also see

Commentary on Rules 8 and 9.

53. ”Seniority-cum-fitness” “Seniority-cum-merit”, and “Merit-cum-

seniority” Principles of — “Seniority-cum-fitness” principle implies that the senior

person, unless unfit should get the promotion. “Seniority-cum-merit” implies that

seniority is the primary consideration with fitness as the supporting concomitant. When

merit is the dominant principle the rule of “merit-cum- seniority” or “merit with due

regard to seniority” is applied. Where promotion is by seniority merit takes the second

place, but when it is a selection merit takes the first place. The principle of seniority-

cum-fitness has been generally applied at the lower levels of service where the duties

are of a routine nature. It has also been applied in promotions from a junior scale post

to a senior scale post within the same service. But when the question arises of

appointment to a higher service consisting of posts carrying superior responsibility, the

emphasis shifts from “seniority-cum-fitness” to “merit-cum-seniority”. Hari Datt

Kainthla v. State of Himachal Pradesh, 1974 (1) SLR 208 (FB): 1974 SLJ 525. On

appeal the Supreme Court held that if there was no rule and the High Court proceeded

to adopt merit-cum-seniority, or seniority-cum-fitness as a criterion for recommending

promotions from subordinate judges to the post of District Judges neither of which

appears to violate either Article 233 or Article 16 or any other constitutional mandate or

any statutory rule, it would be futile to proceed to examine what ought or possible

criterion should really govern the decision for recommending persons from subordinate

judicial service for promotion to the post of DSJ/ADSJ. Hari Datt Kainthla v. State of

H.P., AIR 1980 SC 1426: 1980(3) SCR 364: 1980(3) SCC 189: 1980 Lab IC 825:

1980(2) SLR 154.

Where senior persons of good merit are ignored, the authorities are expected to

at least make such kind of a record, so as to satisfy the minimum basic requirements of

fair consideration. It is also for the reasons that some material should be available

before the Court in the event such appointments are questioned and are subjected to


judicial review. Lack of sufficient material itself indicates higher decree of arbitrariness

in such action. Sudha Suri v. Union of India, 2002(1) SLR 665 P&H (DB).

54. Promotion to Selection Post: (i) Not a Matter of Right — Appointment

or promotion to a selection post is not a matter of right. Sant Ram Sharma v. State of

Rajasthan, AIR 1967 SC 1910: 1968(1) SCR 111: 1967 SLR 906: 1968(2) LLJ 830:

(1968) 1 SCJ 672; Guman Singh v. State of Rajasthan, 1971 Supp SCR 900: 1971(2)

SCC 452: 1971(2) SLR 799: 1972 Lab IC 1295: (1973) 1 SCJ 267; Mir Ghulam Hussen

v. Union of India, AIR 1973 SC 1138: 1973(4) SCC 135: 1973 Lab IC 795: 1973 (1)

SLR 953.

When the promotion is in respect of a “selection post” and the principle to be

applied is “merit-cum-seniority”. The principle of seniority-cum-fitness was to be

followed for promotion to the post of Research Officer, the departmental rules clearly

showed that the promotion was in respect of a “selection post” and the promotion was

to be made on the basis of the inter-se-merit of the eligible candidates. In that view of

the matter, it was held that a candidate is not entitled to get promotion to the post of

Research Officer on the strength of seniority alone. Central Council for Research in

Ayureda & Siddha v. K. Santhakumari, AIR 2001 SC 2306: 2001(5) SCC 60: 2001(1)

JT (Supp) 411: 2001(4) SLR 651 (SC): 2001 Lab IC 2073: 2001 AIRSCW 2155:

2001(4) Andh LT 9: 2001(2) Ker LT 775: 2001 SCC(L&S) 772.

(ii) Seniority — Seniority by itself is not a sufficient qualification for

promotion to a selection post. Selection is to be on merit primarily and regard to

seniority is due to be given only when merit is equal. Harinandan Sharan Bhatnagar v.

S.N. Dixit, (1969) 2 SCJ 862: AIR 1970 SC 40: 1970(1) SCR 421: 1969(2) SCC 245:

1969 SLR 468; R.L. Butail v. Union of India, (1970) II SCWR 561: 1970 SLR 926:

(1971) 2 SCJ 566; N.P. Mathur v. State of Bihar, 1971 SLR 335: AIR 1972 Patna 93;

Dr. Jai Narayan Misra v. State of Bihar, (1970) II SCWR 687; Abdul Hamid Matu v.

State of J&K, 1974 SLJ 232; Union of India v. S.K. Srivastava, 1979 (3) SLR 724.

(iii) Merit — It is beyond any debate that merit counts foremost in the matter

of promotion to the selection grade post. Dr Hari Prasad v. State of Bihar, AIR 1972

Patna 4; Lal Chand Pargal v. Director NES, AIR 1970 J&K 57; G.M. Dar v. State, AIR

1970 J&K 90; Union of India v. Durgadas, AIR 1978 SC 1132: 1979(1) SCC 59:

1978(2) SLJ 108(1): 1978 Lab IC 966.

Infliction of the punishment of withholding of increments is a relevant factor to

be taken into account in assessing the merit and ability of the person concerned. Kerala

State Electricity Board v. T.S. Sahasranaman, 1978 (1) SLR 322.

In relation to the promotion of the Private Secretaries of the Judges, Chief

Justice of the High Court in September 1991 fixed the principle and directed that “the

criteria for promotion shall be merit-cum-seniority to be adjudged with reference to

confidential records and dictation-typing and interview tests. Leave and attendance

records shall also be taken into consideration”. When this criterion was challenged It

was held by Supreme Court that the Private Secretaries to the Hon”ble Judges play an

important role in taking down dictations and writing judgement and, if merit is not

given its due consideration and appointments are made on the basis of seniority, then it


would be difficult for any Judge to discharge his obligations. Hon”ble Chief Justice,

High Court of Bombay v. B.S. Nayak, 2001(9) SCC 763: 2001(4) SLR 31 (SC): 2001(5)

JT 561.

(iv) Authority who can Make Selection — It is well settled that it is only the

authority vested with the power and jurisdiction who would make the selection. If

selection is made by any other authority then that would be without jurisdiction and

void. Sachidananda Mohanty v. Union of India, AIR 1971 Orissa 6.

(v) Administrative Instructions — Government has the power to issue

Administration Order governing the service conditions of its employees in the absence

of any statutory provisions governing the field. M.M. Dolichan v. State of Kerala, AIR

2001 SC 216: 2001(1) SCC 151: 2000(2) JT Supp 571: 2001 Lab IC 66: 2000 AIRSCW

4104: 2001(1) ESC 115: 2001 SCC (L&S) 174: 2000(7) SLR 217.

Where there are no statutory rules regulating the selection, there is no bar to the

Administration giving instructions regarding promotion as long as such instructions are

not inconsistent with any rule of the subject. Lalit Mohan Deb v. Union of India, (1972)

1 SCWR 430: AIR 1972 SC 995: 1973(3) SCC 862: 1972 SLR 411: (1973) 2 SCJ 92.

Right of consideration for promotion available under statutory rules cannot be

taken away by an administrative order which is in the nature of a suggestion to the

Government to exclude a particular category of people from consideration. Provisions

of statutory rules cannot be taken away by a suggestion of the executive until and

unless the rules are appropriately amended. N.K. Pankajakshan Nair v. P.V. Jayaraj,

2001(3) SLR 580 (SC): 2001(4) JT 406: 2001(2) KLT 141.

55. Promotion by Selection — In the case of a promotion by selection, the

merit and suitability of the officer in all respects to hold the promotional post in the

public interest, irrespective of his seniority is the primary factor. Seniority becomes

relevant only when the merit of the two or more eligible officers is found to be equal in

all respects and not otherwise. Vijayadevraj Urs v. G.V. Rao, 1982 (2) SLJ 399.

Where there is no statutory rule requiring D.P.C. to give its reasons for the

selection, the doctrine of speaking order be not extended to the selection. S.K.

Chandrika v. Union of India, 1982 (2) SLR 647: 1982 Lab IC 1688.

56. Promotion, Reasonable Classification for — There can be a reasonable

classification of employees for the purposes of appointment or promotion.

M.C.Srinivasan v. Collector of Central Excise, AIR 1970 Mysore 238; State of Kerala

v. N.M.Thomas, 1976 (1) SLR 805 (SC): AIR 1976 SC 490: 1976(1) SCR 906: 1976(2)

SCC 310.

57. Rules of Classification — The State is legitimately empowered to frame

rules of classification for securing the requisite standard of efficiency in services and

the classification need not be scientifically perfect or logically complete. Ganga Ram v.

Union of India, AIR 1970 SC 2178: 1970(3) SCR 481: 1970(1) SCC 377: 1970 SLR

755: (1970) 2 SCJ 584.

58. Promotion: Community-wise Unconstitutional — Distribution of

appointments, posts or promotions community-wise is contrary to the constitutional


guarantee under Articles 16(1) and (2) and is not saved by clause (4). Triloki Nath Tiku

v. State of J&K, 1969 SLR 748: (1969) 1 SCJ 306: AIR 1969 SC 1: 1969(1) SCR 103;

Makhanlal Waza v. State of J&K, 1971 (2) SLR 294: AIR 1971 SC 2206: 1971(3) SCR

832: 1971(1) SCC 749.

59. Reservation of Posts for Members of Scheduled Castes, Scheduled Tribes and Backward Classes — Article 335 of the Constitution provides:— “The

claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken

into consideration, consistently with the maintenance of efficiency of administration, in

the making of appointments to services and posts in connection with the affairs of the

Union or of a State.”

Article 16(4) of the Constitution provides:— “Nothing in this Article shall

prevent the State from making any provision for the reservation of appointments or

posts in favour of any backward class of citizens which, in the opinion of the State, is

not adequately represented in the services under the State.”

Reservation can be made not merely to initial recruitment but also to the posts

to which promotions are to be made. The reservation can also be provided for selection

posts as well as for non-selection posts. The reservation, however, is to be made

consistently with the maintenance of the efficiency of administration. If they are unfit

for post, they cannot claim to be appointed to the service despite reservation. The extent

of reservation to be made is primarily a matter for the State to decide. The reservation

must be only for the purpose of giving, adequate representation in the service to the

Scheduled Tribes and Backward Classes. The burden of establishing that a particular

reservation made by the State is offensive to Article 16(1) is on the person who takes

the plea. State of Punjab v. Hira Lal, (1971) 2 SCJ 471: AIR 1971 SC 1777: 1971(3)

SCR 267: 1970(3) SCC 567: 1971 (2) SLR 98; State of Kerala v. N.M.Thomas, 1976 (1)

SLR 805 (SC): AIR 1976 SC 490: 1976(1) SCR 906: 1976(2) SCC 310; Akhil Bhartiya

Soshit Karmchari Sangh (Railway) v. Union of India, 1981(2) SCR 185: AIR 1981 SC

298: 1981(1) SCC 246: 1980 Lab IC 1325 1980(3) SLR 645: 1981(1) LLN 27: 1980

SLJ 734: 1981 SCC (Lab) 50.

As per Article 16(4) which carves out a separate field for itself from the

general sweep of Article 16(1) which guarantees equality of opportunity in matters of

appointments in Government services to all citizens of India, the reservation for these

categories in employment has to be achieved by earmarking requisite percentage of

posts for the reserved category of candidates and by pitch forking these posts on roster

points on requisite points roster and when such a roster takes full cycle, posts

earmarked on reserved points will enable the requisite reserved category of candidates

to fill up these posts. After that is done, the roster would be treated to have achieved its

purpose. When posts in a cadre are to be filled in from two sources whether the

candidate comes from the source of departmental promotees or by way of direct

recruitment once both of them enter a common cadre their birth marks disappear and

they get completely integrated in the common cadre. This would be in consonance with

the thrust of Article 16(1) of the Constitution of India. No question of exception to the

said general thrust of the constitutional provision would survive as Article 16(4) would


be out of picture in such a case. State of Punjab v. R.N. Bhatnagar, 1999(2) SLR

552 (SC).

If the persons belonging to open class have reaped the benefit in a previous

year on account of non-availability of candidates belonging to Scheduled Castes and

Scheduled Tribes they cannot complain that during the subsequent year there was

discrimination or excessive reservation if more number of posts were made available to

the reserved category to compensate the vacancies which they had lost during the

previous year. T.S.Chandrasekhariah v. Coffee Board, 1982 Lab IC 391.

60. Temporary Exemption from Test for Promotion for Members of Scheduled Castes and Scheduled Tribes — Rule providing an extended period of two

years to members of Scheduled Castes and Scheduled Tribes for passing the special test

for promotion does not violate Article 14 or Article 16(1) and (2). State of Kerala v.

N.M. Thomas, AIR 1976 SC 490: 1976(1) SCR 906: 1976(2) SCC 310: 1976 Lab IC

395: 1976 (1) SLR 805; Lakshman Prasad Sinha v. State of Bihar, 1979 (3) SLR 389.

61. Promotion or Demotion, Powers of Court — The power to promote an

officer belonging to the Executive and the judicial power may control or review

Government action but cannot extend to acting as if it were the Executive. The Court

may issue directions but leave it to the Executive to carry it out. The judiciary cannot

promote or demote officials but may demolish a bad order of Government or order

reconsideration on correct principles. State of Mysore v. C.R.Seshadri, 1974 SLJ 209:

AIR 1974 SC 460: 1974(3) SCR 87: 1974(4) SCC 308: (1975) 1 SCJ 64: 1974 (1)

SLR 407.

Promotion cannot be treated as a consequential relief per se when the court

itself had restricted the relief given to the petitioner to the “monetary benefits” and all

such benefits had been given to him. Chet Ram Sharma v. State of Haryana, 2001(3)

SLR 515 P&H.

Any promotions made wrongly in excess of any quota are to be treated as ad

hoc. This applies to reservation quota as much as it applies to direct recruits and

promotee cases. If a Court decides that in order only to remove hardship such roster

point promotees are not to face reversions, then it would be, necessary to hold —

consistent with interpretation of Articles 14 and 16(1) — that such promotees can not

plead for grant of any additional benefit of seniority flowing from a wrong application

of the roster. It was held that while Courts can relieve immediate hardship arising out of

a past illegality, Court cannot grant additional benefits like seniority which have no

element of immediate hardship. Ajit Singh v. State of Punjab, AIR 1999 SC 3471:

1999(7) SCC 209: 1999(7) JT 153: 1999 Lab IC 3128: 1999(4) LLN652: 1999(5)

SLR 268.

The High Court ought not to issue writs directing the State Government to

promote the aggrieved officers with retrospective effect. The correct procedure for the

High Court is to issue a writ to the State Government compelling it to perform its duty

and to consider whether having regard to his seniority and fitness the candidate should

have been promoted on the relevant date and so what consequential benefits should be

allowed to him. State of Mysore v. P.N. Nanjundiah, 1969(3) SCC 633: 1969 SLR 346


(SC) followed in Government of Andhra Pradesh v. A.P. Jaiswal, 2000(6) SLR

734 (SC).

Where the Court was satisfied that the respondent was not only to be

considered for promotion to the promotional posts, but was also entitled to arrears of

pay and allowances since he had been deprived of those benefits not on account of any

fault of his but on account of the fault of the authorities concerned; Held that in

exercise of writ jurisdiction, the Court may mould the relief having regard to the facts

of the case and interest of justice. Food Corporation of India v. S.N. Nagarkar, AIR

2002 SC 808: 2002(2) SCC 475: 2002(1) JT 443: 2002 AIRSCW 466: 2002(3) Andh LT

9: 2002(92) FLR 1043: 2002 SCC(L&S) 312: 2002(1) ESC 110: 2002(1) SLR 739 (SC).

62. Overlooking for Promotion Amounts to Punishment — If by preparation

of a long list of persons eligible for promotion the consideration of a person”s case for

promotion is postponed for the currency of the list, i.e. until the list is exhausted by

promoting persons mentioned therein to vacancies as and when they arise, it would

amount to actually postponing his promotion for the said indefinite period and in fact

amounts to punishment. N. Sreenath v. State of Mysore, 1973 SLJ 41; 1972 SLR 449.

63. Separate Units Combined : Difference in Promotional Opportunities Unconstitutional — The two wings were integrated into one service and Rules,

provided for the promotion on the basis of seniority-cum-merit. Government issued

notifications fixing up the cadre strengths, reduced the promotional posts available to

P.W. Accounts unit to a very low figure as compared with promotional opportunities

open to the officers in the other wing. Notifications struck down as violative of the

constitutional guarantee given by Articles 14 and 16(1). State of Mysore v. M.H.

Krishna Murthy, AIR 1973 SC 1146: 1973(2) SCR 575: 1973(3) SCC 559: 1973 SLJ

168: (1974) 1 SCJ 54.

64. Writ to Challenge Promotion Constitutes no Misconduct — The act of

petitioners in presenting writ petitions before High Court and their act in persuading the

other colleagues to join as writ petitioners constitutes no misconduct and the action of

the respondent in instituting the disciplinary enquiry and finally imposing penalty

against the petitioner is vindictive action by the disciplinary authority for which he can

be punished under the provisions of the Contempt of Courts Act. V.K. Parameshwaran

v. Union of India, 1982 (1) SLJ 516: 1982 Lab IC 383: 1981 (3) SLR 164. See also

Vimal Kumari v. State of Haryana, 1998(4) SCC 114: 1998(2) JT 111: 1998(2) SLR

230: (1998) 2 SCJ 99.

DEPARTMENTAL EXAMINATION OR TEST FOR PROMOTION

65. Holding Test Examination for Promotion — (i) The passing of

departmental examinations is not really a qualification but only what amounts to

removal of an obstacle to promotion which may otherwise be claimed by a civil servant

has to pass a departmental examination in order to become entitled to promotion to a

higher post, the material date on which the question whether he has or has not passed

that departmental examination has to be considered is the date on which the promotion

is made. It would be taking an extremely unreasonable view to judge the eligibility of a

civil servant for promotion with reference to the date on which the vacancy arose. T.

Shair Saheb v. State of Mysore, AIR 1971 Mysore 26. For promotion of employee


lower in seniority list see Siya Ram v. Union of India, AIR 1998 SC 1470: 1998(2) SCC

556: 1997(10) JT 149: 1997(6) SLR 624: 1998 Lab IC 885: (1998) 1 SCJ 260.

(ii) Statutory rules under Article 309 did not provide for test for promotion of

clerks to the post of assistant. Administrative instruction issued to include a

qualification test for promotion of clerks to assistants. Test could not be regarded as an

essential prerequisite for such promotion. P.C. Wadhwa v. Union of India, AIR 1964

SC 423: 1964(4) SCR 598: 1964(1) LLJ 395; State of Haryana v. Shamsher Jung

Shukla, 1968 SLR 162: 1968 Cur LJ 72; Mrs J.K. Pritam Singh v. State of Punjab, 1967

SLR 251; Lalit Mohan Dev v. Union of India, AIR 1970 Tripura 10; See other view in

Harjit Singh v. I.G.Police, Haryana, 1969 SLR 845: 1969 Cur LJ 966.

(iii) Under the rules on examination or test was provided before being

considered for promotion. Office order was issued prescribing test in order to guide the

making of promotions. The executive instructions are void as they amount to an

alteration of the rules prescribed. State of Haryana v. Shamsher Jung Bahadur, (1972) 1

SCWR 874: AIR 1972 SC 1546: 1973(1) SCR 249: 1972(2) SCC 188: 1972 SLR 441:

(1973) 2 SCJ 582; State of Punjab v. Madan Singh, (1972) SCWR 879: 1972 SLR 446:

AIR 1972 SC 1429: 1974(3) SCC 90: (1973) 1 SCJ 82.

(iv) Departmental examination could not be prescribed for promotion to the

next higher rank which was not there prior to the reorganization of the States.

Mohammad Bhakar v. V. Krishna Reddy, 1970 SLR 768 (SC); Lehna Singh v. Punjab

State, 1970 SLR 844: AIR 1971 Punjab 198; State of Mysore v. R. Basappa, 1980 (1)

SLR 845 (SC).

(v) An employee on failure to pass departmental examination may be reverted.

Prem Singh v. State of Punjab, 1980 (3) SLR 278.

(vi) An employee cannot be reverted for failure to pass the examination where

the examination is not held. State of Maharashtra v. Chandrakant Anant Kulkarni, AIR

1981 SC 1990: 1982(1) SCR 665: 1981(4) SCC 130: 1981 SCC (Lab) 562: 1981 (3)

SLR 326 (SC): 1981 (2) SLJ 280: 1982 (1) SLR 697.

66. Viva Voce, Written Test — (i) The adjustment of suitability by method of

viva voce is unsatisfactory. Janki Prasad Parimoo v. State of J&K, AIR 1973 SC 930:

1973(1) SCC 420: (1975) 2 SCJ 50: (1973) 3 SCR 236: 1973 (1) SLR 719; Parvez

Qadir v. Union of India, 1975 (1) SLR 4: 1975 SLJ 130. The selection based upon the

bare interview without laying down any objective criteria for the guidance of the

Selection Committee, appears to be clearly illegal. Dr Dhrubashankaran v. Osmania

University, 1980 SLJ 153. In B. W. Dhavan v. Union of India, 1973 SLJ 56, it was held

that written test is more appropriate to test the candidate objectively than a viva voce.

See also Siya Ram v. Union of India, AIR 1998 SC 1470: 1998(2) SCC 556: 1997(10)

JT 149: 1997(6) SLR 624: 1998 Lab IC 885: (1998) 1 SCJ 260.

(ii) However, by subsequent rulings it is now well recognized that while a

written examination assesses a candidate”s knowledge and intellectual ability, an

interview test is valuable to assess a candidate”s overall intellectual and personal

abilities. The weight to be given to the interview test should depend on the requirement


of the service to which recruitment is made. Lila Dhar v. State of Rajasthan, 1982(1)

SCR 320: 1981(4) SCC 159: AIR 1981 SC 1777: 1981 Lab IC 1515: 1981(3) SLR 56.

(iii) Fixing 50 percent marks in interview as minimum qualifying marks for

selection is unreasonable and hold (Public Service Commission was directed to revise

the list in accordance with proper criteria as indicated in the judgement). L.V. Ashara v.

Gujarat Public Service Commission, (1984) 3 SLR 411, paragraph 8, 13 and 14.

(iv) Unless there is a question of mala fides, court cannot go into questions put

by the Selection Committee at an interview and decide whether the questions were

proper. Javed Rasool Bhat v. State of J & K, (1984) 1 SLR 543, 549, para 5 (SC).

(v) It is not for the court to lay down whether an interview should be held at all,

or how many marks should be allotted for the interview test. Of course, the marks must

be minimum, so as to avoid charges of arbitrariness, but not necessarily always there

may be posts and appointments where the only proper method of selection may be an

interview. Javed Rasool Bhal v. State of J & K, (1984) 1 SLR 543, 553 para 8 (SC).

(vi) A selection made on the basis of the written test held for the purpose of

“short listing” followed by an oral test in the shape of interview held for assessing

several other relevant questions or equipment of the candidate, referred to in the “Note

on Interview” is perfectly valid and does not violate Article 14 of the Constitution. Dr

P.G. Reddy v. B. Laxman, (1983) 3 SLR 170, 181, 182 para 17 (AP).

(vii) Allotment of “block marks” (i.e. 100 marks to the entire interview) is not

itself illegal. Hanumanathappa H. v. Muniswamy, (1984) 3 SLR 778 (Kar) (DB).

(viii) Persons whose near relations are candidates at an interview should not

participate in the process of selection at an interview. Subhash Chander Sharma v. State

of Haryana, (1984) 1 SLR 165 (P&H) (DB) (Case Law reversed).

(ix) Interview cannot be allowed to play a dominant part (in the selection

process). If a candidate is disqualified for not getting marks in interview, the rule would

be void. Marks of interview and written test should be taken together. State Bank of

Travancore v. Soumini, (1983) 3 SLR 299, 300, 301 para 4 & 5 (Ker) (DB).

(x) A Public Service Commission is competent to hold a screening test for the

selection of candidates for being called for interview. Further, there is no discrimination

in requiring that those with post graduate qualifications or doctoral qualifications must

also take the test. (1983) 2 SLR 363, 369, 370 paras 16 & 17 (Raj) (DB).

DEPARTMENTAL PROMOTION, SELECTION COMMITTEE OR BOARD

67. Departmental Promotion Committee, Position of — D.P.Cs. are required

to sit every year, regularly on or before 1st April or 1st May of the year to fill up the

vacancies likely to arise in the year for being filled up. The required material should be

collected in advance and merit list finalised by the appointing authorities and placed

before the D.P.Cs. for consideration. This requirement can be dispensed with only after

a certificate is issued by the appointing authority that there are no vacancies to be filled

by promotion, or that no officers are due for confirmation, during the year in question.


Union of India v. N.R. Banerjee, AIR 1997 SC 3761: 1997(9) SCC 287: 1996(11) JT

605: 1997(1) SLR 751: 1997(2) SLJ 103

The right to be considered by the Departmental Promotion Committee is a

fundamental right guaranteed under Article 16 of the Constitution of India, provided a

person is eligible and is in the zone of consideration. Delhi Jal Board v. Mahinder

Singh, AIR 2000 SC 2767: 2000(7) SCC 210: 2000(2) LLJ 1604: 2000(5) SLR 274:

2000(4) LLN 560: 2000(87) FLR 130

The fact that the law permits the promoting authority to receive the law

assistance of an independent body or a departmental selection committee does not mean

that by appointing such a committee, the promoting authority can absolve itself of the

obligation of applying its mind to the case of promotion of persons by selection. The

ultimate application of mind to the selection must be by the promoting authority. N.

Sreenath v. State of Mysore, 1973 SLJ 41: 1972 SLR 449. For guidelines followed by

selection board for promotion and for challenge of selection without written test see

Siya Ram v. Union of India, AIR 1998 SC 1470: 1998(2) SCC 556: 1997(10) JT 149:

1997(6) SLR 624: 1998 Lab IC 885: (1998) 1 SCJ 260..

68. Selection Board or Promotion Committee, Members of — (i) Personal

bias: Where one of the members of selection board is also to be considered for

selection, the decision taken by the Board cannot be considered as having been taken

fairly and justly. Selection set aside. A.K. Kraipak v. Union of India, (1970) 1 SCJ 381:

(1969) 1 SCWR 1122: AIR 1970 SC 150: 1970(1) SCR 472: 1969(2) SCC 240; V.N.

Nadgir v. Union of India, 1970 SLR 134

(ii) No man shall be a judge in his own cause. Nageshwar Rao v. State of A.P.,

AIR 1959 SC 1376: 1960(1) SCR 580: 1960 SCJ 53. .

(iii) Likelihood of bias — When one of the members of the committee for

preparing the list of candidates for appointment to the Indian Administrative Service is

son-in-law of one of the candidates, the petitioners could have legitimately believed

there was a reasonable likelihood of bias in favour of father-in-law and to the detriment

of the petitioners, because of the presence of son-in-law on the committee. Select list

quashed. D.K. Khanna v. Union of India, 1973 SLJ 1345: AIR 1973 HP 3.

(iv) Mala fide of members — Every preference does not vitiate an action. If it is

rational and unaccompanied by considerations of personal interest, pecuniary or

otherwise, it would not vitiate a decision. For example, if a senior officer expresses

appreciation of the work of a junior in the Confidential Report, it would not amount to

bias nor would it preclude that senior officer from being part of the Departmental

Promotion Committee to consider such junior officer along with others for promotion.

G.N. Nayak v. Goa University, AIR 2002 SC 790: 2002(2) SCC 712

Where there is nothing to show the reporting officer and the reviewing

authority, who were responsible for the adverse confidential reports, were members of

the promotion committee or were in any event responsible for the appellant not having

been recommended, the selection cannot be said to have been done with any mala fide

object. R.L. Butail v. Union of India, (1970) II SCWR 561: 1970 SLR 926: (1971) 2


SCJ 566; Mala fides have to be proved by reliable legal cogent evidence. D.K. Gupta v.

Municipal Corporation, 1979 (3) SLR 416: 1978 SLJ 525.

69. Committee Not Validly Constituted — Screening committee which was

not validly constituted made recommendations to Public Service Commission. Public

Service Commission sanctioned the final list. Order set aside. Prithvi Raj v. State of

Punjab, 1969 Cur LJ 30; Kenahiah v. State Level Recruitment Committee, AIR 1966

Mysore 36; Jagdish Pandey v. The Chancellor, University of Bihar, AIR 1968 SC 353:

1968(1) SCR 231: 1968 SLR 252: (1968) 1 SCJ 799.

70. Delay in constitution of the committee — By merely failing to nominate a

member and not allowing the committee to meet, the Commission can”t be permitted to

defeat the rights of the candidate. Held that even retirement cannot be a ground for

refusing to consider the claim for promotion. The right to be considered had accrued in

the year 1994-95. It was further held that the wrong done to the petitioner can only be

remedied by one method viz. directing the respondents to do the needful on the

hypothesis that he was in service at the relevant time. If the petitioner is found suitable

for inclusion in the select list and if his turn for appointment comes against an available

post in the promotion quota, he will be deemed to have been promoted with effect from

the due date. Consequential reliefs shall ensure in accordance with the rules. Chaman

Lal Lakhanpal v. Union Public Service Commission, 1999(1) SLR 671 P&H (DB).

71. Promotion Committee Proceedings, Claim of Privilege — Claim of

privileges by Government under Section 123, Evidence Act unnecessarily invites

suspicion when disclosure will be to its benefit. The tendency is hardly consistent with

the open and democratic society that our Constitution is committed to build. Public

matters should be made open to public scrutiny and it is only in cases which involve

any danger to the security of the State that any documents should be withheld from the

Courts. Ram Gopal v. Union of India, 1972 SLR 258 (Delhi); N.S. Panda v. Union of

India, 1977 (2) SLR 589.

72. Promotion Committee, Disclosure of Proceedings of — The demand for

disclosure of proceedings was not entertained not being bona fide demand under the

circumstances of the case. R.L. Butail v. Union of India, (1970) II SCWR 561: 1970

SCR 926: (1971) 2 SCJ 566.

73. Promotion or Selection Committee Proceedings, Scrutiny or Review of — High Court does not sit as a court of appeal on the deliberations and

recommendations of the D.P.C. Ram Gopal v. Union of India, 1972 SLR 258; D.K.

Gupta v. Municipal Corporation of Delhi, 1979 (3) SLR 416: 1978 SLJ 525; Union of

India v. Durga Dass, AIR 1978 SC 1132: 1979(1) SCC 59: 1978 Lab IC 966: 1978 (2)

SLR 108; G.C. Dhiman v. State of H.P., 1979 (1) SLR 533; B.S.R Sharma v. Food

Corporation of India, 1979 (3) SLR 495; Dr Mahendra Kumar Patni v. State of

Rajasthan, 1983 (1) SLR 12.

74. Promotion Committee took into Consideration, Confidential Reports

made by a Person who himself was in the Field for Promotion — The annual

confidential reports relating to others were initiated by an officer who himself was an

aspirant for promotion to a higher post along with them. It would not have been fair for


the D.P.C. to take into consideration such reports though they might have been revised

by the higher authorities. Dr S.P. Kapoor v. State of Himachal Pradesh, AIR 1981 SC

2181: 1982(1) SCR 1043: 1982 Lab IC 9: 1981(4) SCC 716: 1981 (3) SLR 220: 1982

Lab IC 9.

75. Whether the Promotion Committee to give Reasons for Selecting or

Rejecting a Candidate — In the absence of a rule (statutory or not) (and mandatory or

otherwise), requiring recording of reasons, infirmity, cannot be attached to a select list

merely because ex facie it does not give the reasons for the inclusion of some of the

candidates therein and the necessary and resultant exclusion of others in the field of

choice therefrom, if, and only if, the list is shown to be the outcome of application of

mind by the Selection Committee. The doctrine of “speaking order” is not to be

extended to this region of preparation of select list. T.K. Sukumaran v. State of Kerala,

1979 (3) SLR 623: 1980 Lab IC 1305; S.K. Chandrika v. Union of India, 1982

Lab IC 1688. The principle that administrative orders affecting the rights of the

citizens should contain reasons, has no application on the procedure of selection

committee unless the rules so require. Union of India v. Samar Singh, 1996(10) SCC

555: 1996(9) JT 184: 1997(75) FLR 493: 1996(6) SLR 732: 1997(1) SLJ 56: 1997(2)

LLJ 321

76. Judicial review of reasons given by Committee — Promotion to the post

of General Manager is governed by Rule 24 of the Employees Service Rules, 1979.

Under the said rule the Selection Committee is required to recommend the suitable

employee for promotion whom they consider fit. Suitability and merit being the criteria

for promotion and respondent having been considered but being found unsuitable for

promotion, the constitutional rights of being considered cannot be said to have been

infringed. If the Department Promotion Committee has taken into consideration the fact

that the respondent has not in fact served as Joint General Manager though he has been

given notional promotion to the said post and, therefore, has not gained the necessary

experience, it cannot be said that the ground is an extraneous ground for adjudging the

suitability of the person for being promoted to the post of General Manager. It was also

held that the Court is not entitled to assess the respective merit of the candidates for

adjudging their suitability for being promoted and the only right the employee has, is a

right of consideration. Orissa Small Industries Corporation Ltd. v. Narasingha Charan

Mohanty, 1999(4) SLR 423: AIR 1999 SC 516: 1999(2) SCC 119: 1999(8) JT 501.

77. Recommendations of Promotion Committee not binding — Recommendation of Departmental Promotion Committee being advisory in nature are

not binding on the Appointing Authority. It is open to the Appointing Authority to

differ from the recommendation in public interest but while differing with the

recommendation of D.P.C. the Appointing Authority must give the reasons. The

authority is not required to communicate these reasons to the candidate but it may

produce the necessary record containing reasons before the Court when the same are

challenged. Union of India v. N.P. Dhamania, 1994(4) Scale 629: AIR 1995 SC 568:

1995 Supp (1) SCC 1: 1994(7) JT 465: 1994(5) SLR 757: 1994(28) ATC 738: 1995(1)

SLJ 193: 1995(5) SLR 509: 1995 Lab IC 314.


78. Public Service Commission, Opinion of — The opinion of Public Service

Commission is merely advisory. (Article 320). Ram Chandra Tripathi v. State of

Orissa, 1970 Lab IC 160 (Orissa); Sri Krishna Agarwal v. State of M.P., AIR 1970 MP

162; Kashmiri Lal Bhatia v. Secretary, Haryana, P.S.C., 1973 (1) SLR 310.

In another case it was held on consideration of relevant rules that where the

selection committee consisting of persons with sufficient experience in the concerned

field with the knowledge of job requirements and necessary qualifications selected the

candidates after examining his qualification, held that the appointing authority has no

power to cancel such appointment. State of Punjab v. Suman Lata, 1999(9) Supreme

320.

79. Ad hoc Promotion — (i) Promotion on an ad hoc basis does not give any

right to the post. Govind Dattatray Kelkar v. Chief Controller of Imports & Exports,

(1967) 1 SCWR 961: (1967) 2 SCJ 182: AIR 1967 SC 839: 1967(2) SCR 29; Dina Nath

Pardesi v. State of H.P., 1981 (1) SLR 71.

(ii) Even for an ad hoc promotion all eligible persons have a right to be

considered. Mallinath Jain v. Municipal Corporation, 1973 SLJ 239: 1973 (1) SLR

413; Parmanand Garg v. Municipal Corporation, 1973 SLJ 293; Gurjit Singh Sabota v.

State of Punjab, AIR 1975 SC 1915: 1975(4) SCC 687: 1975 SLJ 757: 1975 (2) SLR

516: 1975 Lab IC 1051.

80. Refusal to Accept Promotional Post — The Government servant who

refused to accept promotional post offered to him for his own reasons cannot then be

heard to complain that he must be given promotion post from the date on which the

avenue for promotion opened to him. Dr N.C. Singhal v. Union of India, AIR 1980 SC

1255: 1980(3) SCR 44: 1980(3) SCC 29: 1980 Lab IC 710: 1980 (2) SLR 118: 1980

SLJ 408.

81. Supersede, Meaning of — The word “supersede” means to displace, or

pass over, so as to appoint a successor or make way for another, to supplant.

To take the place, room, or position of; to follow in place of; to replace; as the

new bill is designed to supersede all previous bills; the new appointee supersedes a

promoted (or dismissed) official. Union of India v. P.C.Bahl, 1968 Cur LJ 846: AIR

1969 Punjab 161; M.L. Trighatia v. State of Haryana, 1976 (1) SLR 20.

CLAUSE (iii)

Recovery from Pay of Pecuniary Loss

82. Recovery of Loss — (i) In cases where a departmental enquiry followed by

the imposition of a penalty or recovery of loss caused to the Government from salary

becomes impossible after a Government servant”s retirement from service, the

Government still retains the right either to prosecute the Government servant in an

ordinary criminal court if the misconduct amounts to a punishable offence or sue him in

a civil court for recovery of loss caused to the Government by him on account of

negligence or other culpable conduct. R.S. Kalolimath v. State of Mysore, 1970 SLR

869; Asit Baran Choudhury v. Union of India, 1994 (7) SLR 518 (CAT Calcutta).


(ii) A contract between the employee and the Government for recovery of loss

or damage consequent of any act, omission or neglect on the part of the employee is not

against the rule of natural justice. State of Kerala v. M.C. Joseph, 1975 SLJ 605.

(iii) Government had to pay as rent to transporter as delivery of goods was not

taken in time and recovery was ordered from the pay of petitioner without considering

his explanation. If certain explanation is furnished in the reply to show cause, the same

has to be met with by passing a speaking order. Since the authority did not apply mind

at all and passed the impugned mechanical order, the same was quashed. Deep Chand

Sharma v. State of Haryana, 1981 (3) SLR 188.

(iv) The petitioner was served with a charge sheet alleging that at the time of

handing over charge by him, the stores were short to the tune of Rs 14,000. Petitioner

submitted explanation. The petitioner was held liable for the recovery of Rs 8,000. No

evidence was recorded nor any enquiry was held. Order passed was a non-speaking

order hence set aside. Nand Kishore v. State of Punjab, 1983 (1) SLJ 43.

Where permanent loss was caused to government by negligence of employee in

supervisory work and negligence was not a direct cause of loss, recovery of loss from

pay and retirement benefits as held excessive. Sudhir Kumar Das v. Union of India,

(1988) 7 SLR 615 (CAT Calcutta).

CLAUSE (iv)

Explanation (ii)

Withholding of Increments of Pay

83. Increment defined — An increment is granted to an employee in token of

his serving the employer satisfactorily for a period of one year. Haryana State Co-

operative Development Federation Ltd. v. Rajbir Singh, 1999(2) SLR 744 P&H (DB).

84. Advance Increment Discontinued — Government issued notification that

non-gazetted officers other than new recruits who will work regularly during the strike

period will be given an advance increment. Advance increment was given to persons

who became entitled to it. After some time order was reviewed and advance increment

discontinued. Order of discontinuance was held to be illegal and was vacated, as it had

adverse civil consequences and cannot be passed without hearing. Appukuttan Nair v.

State of Kerala, 1969 SLR 496 (FB). See also Prem Singh Verma v. Union of India,

1993 (2) SLR 108 (CAT New Delhi).

85. Increments, Discrimination — Petitioners were J.B.T. Teachers in the

Punjab Educational Service. They were promoted to the classical and vernacular cadres

as Punjab Teachers. Pay Scales of teachers were revised and “Gyanis” etc. were

allowed three advance increments. It was held that petitioners were also entitled to

three advance increments. Jagdish Chander v. State of Punjab, (1984) 1 SLR 441

(P & H).

Discrimination in the matter of stoppage of increment has also been frowned

upon. Delinquent with four other persons charged with beating and some of the charges

were proved but Disciplinary authority passed the order of dismissal of delinquent but

order of stoppage of five increments in respect of others. It was held that it is


undoubtedly open for the disciplinary authority to deal with the delinquency and once

charges are established to award appropriate punishment. But when the charges are

same and identical in relation to one and the same incident, then to deal with the

delinquents differently in the award of punishment, would be discriminatory. Held that

it was not open for the disciplinary authority to impose different punishments for

different delinquents for same charge. State of Uttar Pradesh v. Raj Pal Singh, 2001

Supp (1) JT 44: 2001(4) SLT 294.

86. Increment and Moral Turpitude — Before Government servant is found

guilty of a grave offence involving moral turpitude (intoxicating and disorderly

behaviour) detailed inquiry under Kerala Civil Services etc. Rules. Rule 16 is

necessary, even if the penalty imposed is a minor one. C Ramankutty Warriar v. State

of Kerala, (1983) 1 SLJ 1: (1983) 1 SLR 608 (Ker).

87. Increment is Earned as a Matter of Course Unless Withheld — (i) An

ordinary increment is earned as a matter of course even during disciplinary proceedings.

Fundamental Rule 24 provides: “An increment shall ordinarily be drawn as a matter of

course unless it is withheld. An increment may be withheld from a Government servant

by the Central Government or by any authority to whom the Central Government may

delegate this power under Rule 6, if his conduct has not been good or his work has not

been satisfactory. In ordering the withholding of an increment, the withholding

authority shall state the period for which it is withheld, and whether the postponement

shall have the effect of postponing future increments.” See also Jwala Prasad Singh v.

State of Bihar, 1973 (1) SLR 546; Brahm Dev Seth v. Union of India, 1974 (1) SLR

680: 1973 SLJ 961.

(ii) Withholding of Increment is a Penalty — The withholding of increment

is by itself a penalty and could be imposed on good cause and that a civil servant was

not liable to the increments being withheld merely because of the pendency of certain

proceedings against him. Bhagwan Swarup v. Municipal Corporation of Delhi, 1967

SLJ 160. See also Prem Singh Verma v. Union of India, 1993 (2) SLR 108 (CAT New

Delhi).

(iii) Withholding of Increment Simpliciter and Withholding of Increment

with Cumulative Effect — Withholding of increment simpliciter and withholding of

increment with cumulative effect have different meanings and implications as would be

apparent on a reference to Rule 16(1A) of the Rules. Food Corporation of India v. State

of West Bengal, 1981 (2) SLR 807; Alakendu Sarkar v. State of West Bengal, 1981 (2)

SLR 33 (Cal).

Stoppage of increments with cumulative effect is not a minor penalty but a

major penalty. Punjab State v. Ram Lubhaya, 1982 (2) SLJ 62 (P&H).

Withholding of increments for two years without cumulative effect was

ordered. Entitlement to promotion during the currency of the penalty was at issue.

Applicant was held to be entitled to promotion and increments, on the expiry of the

punishment from the dates on which they had become due. Prem Singh Verma v. Union

of India, (1993) 2 SLR 108 (CAT New Delhi).


Where the penalty imposed is stoppage of one increment without cumulative

effect. It is not a major penalty and regular enquiry is not required under the rules. G.N.

Sundaraja Achar v. Post Master, Kolar, (1990) 2 SLR 624 (CAT Bangalore).

Where the penalty imposed is only the withholding of an increment for 3 years

without cumulative effect, the pension is not effected. The pay will be restored after

operation of the penalty. No enquiry is necessary. S. Jagannathan v. Member

(Personnel), Telecom Board, (1989) 7 SLR 28 (CAT Madras).

(iv) Increments Stopped for Conviction on Criminal Charge Though he

was Given Benefit under Probation of Offenders Act — Petitioner was convicted

under Section 324, Indian Penal Code but was given the benefit under the provisions of

Section 4 (1) of the Probation of Offenders Act. Respondent asked the petitioner to

show cause why penalty of stoppage of three increments be not imposed. The petitioner

replied that he was protected under Section 12 of the P.O. Act and cannot be punished

departmentally. The respondent imposed penalty of stoppage of three increments with

cumulative effect. Since petitioner was not given opportunity of being heard nor was

any enquiry held, the order was quashed. Zile Singh v. Sub-Divisional Officer,

Telegraph, 1982 (1) SLJ 578: 1982 (2) SLR 225.

88. Increment Stopped for not Passing Departmental Examination — (i)

New rule added debarring sectional officers from earning their future grade increments

till such time as they pass the departmental examination. Held, the Rule has no

retrospective effect. O.P. Gupta v. State of Haryana, 1969 Cur LJ 688.

(ii) Passing petty tests after petrifying length of dull official service is an odd

insistence except in important levels of work. State of Punjab v. Sham Lal Murari, AIR

1976 SC 1177: 1977(3) SCR 513: 1977(3) SCC 25: 1977 Crl LJ 964: 1977 CAR 188:

1977 CrLR(SC) 352: 1977 SCC(Cr) 410: 1976 Lab. IC 777.

89. Increment, Stoppage of, Speaking Order be Passed — Speaking order

should be passed. Dr B.K. Talwar v. State of Haryana, 1970 Cur LJ 579: 1970 SLR

732; Ram Das Chaudhary v. State of Punjab, 1968 SLR 792; Bhagat Raja v. Union of

India, AIR 1967 SC 1606: 1967(3) SCR 302; M.L. Gera v. Chief Engineer, Irrigation

Works, Punjab, 1973 (1) SLR 1076; Dr. P.K.Mittal v. State of Punjab, 1982 (2) SLR

267.

The impugned order was in the following terms:

“The explanation submitted by you has been considered and found

unsatisfactory. The Governor of Punjab is, therefore, pleased to decide, in consultation

with Punjab Public Service Commission, to withhold you at the first efficiency bar in

the time scale of P.C.S. at the stage of Rs.... for a period of two years with cumulative

effect from...”. The order was quashed not being a speaking order. Dalip Singh Sodhar

v. State of Punjab, 1982 (2) SLJ 385.

90. Increment stoppage due to Absence from Duty — The delinquent was

not serving in a disciplined force the police or military etc., therefore the punishment of

removal was reduced to stoppage of two increments with cumulative effect and 25%

back wages were granted. Gurnam Singh v. State of Punjab, 2001(3) SLR 604 P&H.


Similarly three annual increments of the delinquent stopped by Labour Court on

account of absence from duty, was affirmed. Brij Mohan v. Presiding Officer, 2001(3)

SLR 354 P&H (DB).

91. Increment stoppage and Natural Justice — Charges having been framed

and the delinquent government servant having filed his show cause to the set of

charges, the regular enquiry having been held and the enquiring officer having recorded

his findings and thereafter the disciplinary authority having disagreed with the findings

by recording the reasons therefore and ultimately awarding minor punishment of

stoppage of one increment without cumulative effect, It was held that there was no

procedural irregularity therein nor can it be said that there has been any violation of

principle of natural justice. State of Rajasthan v. M.C. Saxena, 1998(3) SCC 385: AIR

1998 SC 1150: 1998(2) JT 103: 1998(1) SLR 787: 1998(1) LLJ 1244: 1998(79) FLR

140: 1998(3) SLJ 10: 1998 Lab IC 1038: 1998(93) FJR 582: 2000(1) LLN 35.

92. Increment when Becomes Due during Period of Notice to Retire

Compulsorily — If an increment becomes due during the period of notice, that

increment must be taken into account, not only for the purpose of calculating the

amount of salary to be paid in lieu of notice but also for determining pension. B.U.

Venkataramaiah v. State of Mysore, 1971 Lab IC 985: 1971(1) SLR 72.

93. Postponement of Future Increment — If the effect of the order is the

reduction of the petitioner to a lower stage, in the time-scale, it means the imposing of a

major penalty. C. Veera Chowdaiah v. State of Mysore, 1973 (1) SLR 241: 1973 SLJ 700.

94. Entitlement on reinstatement — An employee ordered to be reinstated

with continuity of service by the Labour Court after setting aside the order of removal

from service, is entitled to all the notional increments during the period he was out of

service and his pay has to be fixed accordingly. V. Ramachander v. Regional Manager,

APSRTC, Nizamabad, 2001(1) SLR 292 AP.

An increment is granted to an employee in token of his serving the employer

satisfactorily for a period of one year. In a case where the employee had actually

tendered a resignation and had left the service so as to start legal practice, the

relationship of employer and employee had virtually terminated. In any case, even if the

employee”s claim is subsequently accepted, the fact remains that he had not served the

employer in any manner whatsoever. The employer had no occasion to watch his

performance or to conclude that he had satisfactorily performed the duties. In this case,

it was the admitted position that the applicant was actually practising law and

conducting cases in Courts. In this situation, it was held that he cannot be entitled to the

benefit of increments in service for the period in dispute. Haryana State Co-operative

Development Federation Ltd. v. Rajbir Singh, 1999(2) SLR 744 P&H (DB).

Explanation (iii)

Stoppage at the Efficiency Bar

95. Efficiency Bar, Crossing of — (i) Express order of appropriate authority is

necessary to allow civil servant to cross the efficiency bar. State of Mysore v. S.V.G.

Iyangar, 1970(2) SCR 159: 1969(2) SCC 703: (1969) II SCWR 496: 1969 SLR 711:


(1970) 2 SCJ 715; Brahm Dev Seth v. Union of India, 1974 (1) SLR 680: 1973 SLJ 961;

U.K. Narayanan v. State of M.P., 1975 SLJ 790: 1975 Lab IC 1173.

(ii) Fundamental Rule 25 provides:

“Where an efficiency bar is prescribed in a time-scale, the increment next

above the bar shall not be given to a Government servant without the specific sanction

of the authority empowered to withhold increments under Rule 24 of the relevant

disciplinary rules applicable to the Government servant or of any other authority whom

the President may by general or special order authorise in this behalf.”

Stoppage of an official at the efficiency bar is not a penalty requiring the issue

of notice. Rule 11, Explanation (ii), CCS (CCA) Rules expressly lays down that

stoppage of a Government servant at the time scale of pay on the ground of his

unfitness to cross the bar does not amount to penalty. A.Kanare v. Union of India, 1990

(2) ATJ 617 (Ahmedabad).

96. Stoppage at Efficiency Bar for Unfitness — Stoppage of a Government

servant at the Efficiency Bar in the time-scale of pay on ground of his unfitness to cross

the Bar is not a penalty under the Rules. The Civil servant is therefore not entitled any

show-cause notice nor to an opportunity of showing cause against the proposal not to

allow him to cross the Efficiency Bar. Dr Nazar Singh v. Punjab University, 1971 (2)

SLR 60 (Punjab); Brahm Dev Seth v. Union of India, 1974 (1) SLR 680: 1973 SLJ 961;

Ram Manoharlal Srivastva v. Chief Conservator of Forests, M.P. 1978 SLJ 191: 1978

(2) SLR 481.

97. Stoppage at Efficiency Bar for Adverse Remarks — The very words

“efficiency bar” connote that unless a person is efficient he should not be allowed to

progress further in terms of pay. Where the adverse remarks were communicated to the

respondent from time to time, order not allowing him to cross the efficiency bar was not

interfered with. Bansi Ram Sharma v. State of H.P., 1982 (1) SLJ 140: 1982 (1)

SLR 378.

On expunging of the adverse remarks the case to be reconsidered regarding

eligibility to cross the efficiency bar from the date he was entitled to C.S. Suryanarayana

v. Union of India, 1982 Lab IC 679: 1982 (1) SLR 465: 1982 (1) SLJ 198.

98. Stopping of the Crossing of Efficiency Bar for Unsatisfactory Work and

Inefficiency — An order was served on the appellant intimating him that he neither

showed interest in the work not applied himself sufficiently. Thereafter, by another

order he was informed that his work was found to be unsatisfactory and it was proposed

to withhold the grant of annual increment, which increment would have entitled him to

cross the efficiency bar and he was called upon to make representation against the

proposed order. The Government after considering the representation ordered stopping

him to cross the efficiency bar. Held, the appellant has been given an opportunity to

make a representation. He has made a representation and the Government has

considered the representation as well as his records. The conclusion that an officer”s

work is inefficient is based on his records as well as by the opinions formed by his

superiors. The inefficiency is something which cannot be concretised. Bhawani Shankar


Sharma v. Union of India, (1972) 1 SCWR 794: AIR 1972 SC 2595: 1974(3) SCC 9:

1973(1) SLR 1095: 1973 LIC 7.

99. Discretion of Authority to Allow Crossing of Efficiency Bar from a

Certain Date — Stoppage of a Government servant at the efficiency bar in the time-

scale of pay on the ground of his unfitness to cross the efficiency bar does not amount

to any penalty. It is within the discretion of the competent authority to allow the

crossing of efficiency bar from a certain date and not to allow arrears before the date

from which the efficiency bar was allowed to be crossed. Brahm Dev Seth v. Union of

India, 1973 SLJ 961: 1974 (1) SLR 680.

100. Discretion of Authority not to Allow to Cross Efficiency Bar: Whether

Court can Interfere in the Discretion of Authority — One cannot cross the efficiency

bar as a matter of right. It is the discretion of the authority concerned to allow a

Government servant to cross the efficiency bar or not. This discretion, however, is not

to be arbitrarily exercised. If the authority after his subjective satisfaction on the

assessment of the overall service record of the officer in regard to his efficiency,

integrity, intelligence etc., forms an opinion that the officer does not deserve to be put

across the line drawn in the grade at the stage of the efficiency bar, then the matter

cannot be agitated by the adversely affected officer against the authority”s decision.

Pritam Singh Gill v. State of Punjab, 1979 (3) SLR 478.

101. Order Stopping to Cross Efficiency Bar, Time When to be Passed — (i) In fairness to a public servant the order preventing him from crossing the efficiency

bar should be passed either before the appointed date or shortly thereafter. Padam Singh

Jhina v. Union of India, 1974 (1) SLR 594 (SC).

(ii) Where there is no material on record to show as to why the petitioner was

not allowed to cross the first efficiency bar with effect from the date of confirmation, he

is entitled to an order in his favour. Jwala Prasad Singh v. State of Bihar, 1973 (1)

SLR 546.

102. Order Allowing to Cross Efficiency Bar Whether Condones all

Previous Adverse Entries — (i) Order allowing the petitioner to cross efficiency bar

must be taken to condone all previous adverse entries. State of Punjab v. Dewan

Chunilal, (1970) 1 SCWR 413: AIR 1970 SC 2086: 1970(3) SCR 694: 1970(1) SCC

479: 1970 SLR 375: (1971) 1 SCJ 238; Hira Nand v. State of H.P., 1981 (2) SLJ 218:

1981 (2) SLR 627. See contra Banshi Lal Nayati v. State of Rajasthan, 1999(3) SLR

187 Raj.

(ii) Adverse report not construed as deterrent for crossing the efficiency bar is

not obliterated and can be taken into consideration for negativing the claim for

promotion. S.S.S.Venkatrao v. State of Orissa, 1974 (2) SLR 899: 1975 SLJ 266 (FB);

Jaswant Singh Brar v. State of Punjab, 1975 (1) SLR 899; Ram Singh Kalson v. State of

Haryana, 1978 (1) SLR 450; Ramesh Prasad Mahapatra v. State of Orissa, 1979 SLJ

366: 1980 (2) SLR 417 (FB).


RULE 11

MAJOR PENALTIES

CLAUSES (v) & (vi)

EXPLANATION (iv), (v) & (vi)

Reduction to Lower Stage in Time-scale of pay

Reduction to Lower Grade, Post or Service

Postponement of Future Increments

Reversion

Replacement of Services of Borrowed Servants

S Y N O P S I S

Reduction to Lower Stage in Time-scale of Pay

1. Reduction in rank as understood for purposes of Art. 311 (2) ....................................... 173

2. Disconfirmation, whether reduction in rank .................................................................. 173

3. Non-promotion, no reduction in rank ............................................................................ 173

4. Reversion, no reduction in rank .................................................................................... 173

5. Transfer, no reduction in rank ....................................................................................... 174

6. Transfer or removal from post of head of department ................................................... 174

7. Reduction in rank with stigma must follow procedure of Art. 311(2) ........................... 174

8. Reduction in pay-scale .................................................................................................. 175

9. Authority under Payment of Wages Act, 1936 ............................................................... 175


10. Reduction to a lower rank than initial recruitment ........................................................ 175

11. Lower scale post offered on medical unfitness .............................................................. 175


12. Postponement of future increments . .............................................................................. 176

Reversion

13. Effect of reversion .......................................................................................................... 176

14. High Court posted A.D.J. as S.S.J. without order of reversion, by State Government .. 176

15. Reversion as a result of adverse entries in service record ............................................. 176

16. Reversion for administrative reasons ............................................................................ 176

17. Reversion for Collateral or extraneous purpose ............................................................ 177

18. Reversion for failing to pass departmental examination ................................................ 177

19. Reversion for not qualifying test prescribed after promotion ........................................ 177


20. Reversion for misconduct .............................................................................................. 177

21. Reversion for unfitness .................................................................................................. 178

22. Reversion for unsatisfactory conduct or misconduct ..................................................... 178

23. Reversion for unsatisfactory work ................................................................................. 178

24. Reversion for unsuitability or inefficiency .................................................................... 178

25. Reversion on abolition of post ....................................................................................... 179

26. Reversion before fixed term .......................................................................................... 179

27. Reversion before tenure period ..................................................................................... 180

28. Reversion on request ..................................................................................................... 180

29. Reversion with loss of pay ............................................................................................ 180

30. Reversion, loss of pay to be determined from his substantive post ............................... 180

31. Reversion with retrospective effect ............................................................................... 180

32. Reversion order – indication of reason therein .............................................................. 181

33. Reversion order whether by way of punishment . .......................................................... 181

34. Reversion when by way of punishment ......................................................................... 181

35. Reversion – application of Art. 311 .............................................................................. 182

36. Natural justice ............................................................................................................... 182

37. Reversion: likely impact on promotion ......................................................................... 182

38. Reversion order: Test for attracting Art. 311(2) ............................................................ 183

39. Reversion junior allowed to continue ............................................................................ 183

40. First come last go .......................................................................................................... 184

41. Reversion with stigma ................................................................................................... 184

42. Reversion without stigma, motive of order ................................................................... 185

43. Reversion order, form of order not conclusive of its nature .......................................... 185

44. Reinstated and reverted ................................................................................................. 185

45. Reversion on acceptance of representation of respondent ............................................. 186

46. Reversion: Railways ...................................................................................................... 186

47. Reversion: Policy decision ............................................................................................ 186

48. Reversion: Ad hoc ex-serviceman ................................................................................. 186

49. Reversion due to qualification ........................................................................................ 186

50. Reversion after long officiation ...................................................................................... 186

51. Reversion under court orders ......................................................................................... 186

52. Reversion while on deputation ...................................................................................... 187

53. Reversion on being recalled .......................................................................................... 187

54. Reversion from deputation for unsuitability .................................................................. 187

55. Reversion from deputation by way of punishment ........................................................ 187

56. Replacement of services as work and conduct unsatisfactory ....................................... 187


57. Officiating and temporary servants entitled to protection in same manner as

permanent servants ........................................................................................................ 187

58. Reversion of employee appointed on ad hoc basis ........................................................ 188

59. Challenge to proposed reversion .................................................................................... 188

1. Reduction in Rank as Understood for Purposes of Article 311(2) — Reduction in rank within the meaning of Article 311(2) means reduction from a higher

to a lower rank or post and not merely losing places in the rank or cadre to which

Government servant belongs, and consequently, his seniority within such cadre or rank.

This would be so, even if as a result of the Government”s action he loses a higher salary

or his chances of promotion to a higher post are reduced. For such action, the remedy

would be under the rules governing the service and not under Article 311(2) as such

action does not amount to reduction in rank as understood for the purposes of Article

311(2). State of Punjab v. Kishan Dass, (1971) 2 SCJ 291: AIR 1971 SC 766: (1971) 1

SCC 319: 1971(3) SCR 389: 1971 Lab IC 481; Baradkanta Misra v. High Court of

Orissa, AIR 1976 SC 1899: 1976 Supp SCR 561: 1976(3) SCC 327: 1976(2) SLR 186:

1976 SLJ 529: 1976 Lab IC 1202: (1977) 1 SCJ 172. See also Ansarali Rakshak v.

Union of India, (1984) 1 SLR 369 (Guj); M.C. Jain v. M.D. Cement Corp. of India Ltd.,

(1990) 7 SLR 744 (AP); Syed Wazihuddin Ahmed v. State of Assam, 1997 (1) SLR 472

(Gau).

Word rank used in the phrase reduction in rank has reference to the

stratification of the posts or grades or categories in the official hierarchy. It does not

merely refer to seniority. All reversions from a higher post to a lower post do not

necessarily amount to reduction in rank. A person working in a higher post, not

substantively but purely on an officiating basis, may, for valid reasons, be reverted to

his substantive post. Nyadar Singh v. Union of India, 1988(2) Supp SCR 547: AIR 1988

SC 1979: 1988(4) SCC 170: 1988(3) JT 448: 1989 Lab IC 14: 1989(1) SLJ 1: 1989(1)

LLN 10: 1988(4) SLR 271: 1988(8) ATC 226.

2. Disconfirmation, Whether Reduction in Rank — If owing to some bona

fide mistake the Government has taken a decision regarding the confirmation of an

officer, it can certainly revise its decision at a subsequent stage when the mistake comes

to its notice. Consequent reduction could not amount to reduction in rank. Sunder Lal v.

State of Punjab, AIR 1970 Punjab 241: 1970 SLR 59. For other view see Municipal

Committee, Rohtak v. Johri Mal Mitter, 1967 SLR 29.

3. Non-promotion, No Reduction in Rank — Non-promotion to a post after

considering the case does not amount to reduction in rank of penalty. State of West

Bengal v. Smt. Kalyani Choudhury, AIR 1970 Cal 225.

4. Reversion, No Reduction in Rank — (i) Reversion from officiating higher

post to substantive post is not reduction in rank. Union of India v. R.S. Dhaba, (1969) 1

SCWR 922: 1969 Cur LJ 461: 1969 SLR 442; State of Assam v. Biraja Mohan Deb,

1969 II SCWR 583; Sri Krishan Agarwal v. State of M.P., AIR 1970 MP 162; State of

Mysore v. M.K.Godgoli, AIR 1977 SC 1617: 1977(3) SCC 512: 1977 Crl LJ 1101: 1977

CAR 332: 1977 CrLR(SC) 260: 1977 Lab IC 847: (1977) 2 SCJ 299. See also G.


Venugopal v. Director of Administrator, Appellate Authority, 1993 (4) SLR 81 (CAT,

Hyderabad).

(ii) Reversion from temporary post does not per se amount to reduction in rank

because temporary post held by him is not his substantive rank. Hartwell Prescott Singh

v. U.P. Government, AIR 1957 SC 886: 1958 SCR 509: 1958 SCJ 148.

A person was promoted as Assistant Engineer on ad hoc basis, as a local

arrangement for more than three years. He was later suspended. Suspension was

revoked after nine months, but the employee was reverted, on the ground of pendency

of vigilance case. Reversion was held to be punitive in nature and, as such illegal.

Narayan Kutty v. G.M., Mahanagar Telephone Nigam Ltd., (1988) 4 SLR 616 (CAT

New Bombay).

5. Transfer, No Reduction in Rank — Government has the power to transfer

a Government servant from one post to another and to re-transfer him to the post on

which he holds a lien. This reversion is not reduction in rank. Article 311 does not

apply. Fateh Singh Chugha v. State of Punjab, AIR 1970 P&H 315.

6. Transfer or Removal from Post of Head of Department — (i) Appellant

was confirmed as Inspector-General of Registration, I.G.R. Head of Department. While

he was holding this post, the post of I.G.R. was included in the cadre of Indian

Administrative Service. Appellant was posted as Accommodation Controller, a post

which is not of Head of Department. Appellant was to continue to draw pay in his old

scale. No reduction in rank. K. Gopaul v. Union of India, (1968) 1 SCWR 49: AIR 1967

SC 1864: 1967(3) SCR 627: 1967 SLR 507.

(ii) Lecturer appointed as head of the department and subsequently removed

from that post without affording him opportunity to be heard. Principles of natural

justice not followed. D. Ramanadha Sastry v. Government Council, C.S.R. Sarma

College, 1969 Lab IC 1562 (AP).

(iii) Transfer from the post of Inspector-General of Police, Himachal Pradesh to

the post of D.I.G., C.R.P. Both posts carried the same scale of pay. Power and status to

the post of I.G. being greater, the transfer is reduction in rank. Madan Gopal Singh v.

Union of India, 1969 SLR 576.

7. Reduction in Rank with Stigma Must Follow Procedure of Art. 311(2) —

It has been ruled again and again by the Supreme Court that reduction in rank

accompanied by a stigma must follow the procedure of Art.311(2) of the Constitution.

Debesh Chandra Das v. Union of India, (1969) II SCWR 1: AIR 1970 SC 77: 1970(1)

SCR 220: 1969(2) SCC 158: (1977) 1 SCJ 16. Reduction in rank is one of the major

punishment mentioned in Art.311. The words “dismiss, remove or reduce in rank” have

a stigma, namely the meaning, which they bear as three major punishments in Service

Rules. If one is reverted by way of punishment for misconduct, Art. 311(2) is attracted.

Barada Kanta Misra v. High Court of Orissa, AIR 1976 SC 1899: 1976 Supp SCR 561:

1976(3) SCC 327: 1976 SLJ 529: 1976 Lab IC 1202: (1977) 1 SCJ 172.

Article 311(2) of the Constitution as it provides that a person shall not be

dismissed or removed or reduced in rank except after an enquiry in which he has been


informed of the charges against him and given a reasonable opportunity of being heard

in respect of those charges. So long as a final decision is not taken in the matter, the

enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary

Authority does not bring about the closure of the enquiry proceedings. The enquiry

proceedings would come to an end only when the findings have been considered by the

Disciplinary Authority and the charges are either held to be not proved or found to be

proved and in that event punishment is inflicted upon the delinquent. That being so, the

“right to be heard” would be available to the delinquent upto the final stage. This right

being a constitutional right of the employee cannot be taken away by any legislative

enactment or Service Rule including Rules made under Article 309 of the Constitution.

Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739:

1999 (83) FLR 534: 2000 (96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000 (1)

LLN 39

8. Reduction in Pay-scale — Government has authority to change the

designation but in this guise not to revise the pay-scale to the detriment of incumbent of

that post who was a confirmed hard working on that post. That would amount to

reduction in rank which could not be done without complying with the requirements of

Art.311(2). P.C.Saxena v. State Government of U.P., 1970 SLR 112. See also P.V.

Srinivasa Sastry v. Comptroller and Auditor General , (1979) 3 SLR 509 (Kar); Nyadar

Singh v. Union of India; M.J. Ninama v. The Post Master General, Gujarat, (1988) 4

SLR 271.

If service of a public servant is extended on the same terms no reduction in

pay-scale can be made by subsequent letter. C.L.Jangra v. Director of Public

Instruction, 1982 (2) SLR 272.

9. Authority under Payment of Wages Act, 1936 — Disciplinary orders of

punishment was passed reducing the pay to the minimum stage of time scale. Held that

authority constituted under section 15 of the Payment of Wages Act, 1936 has no

jurisdiction to interfere with the orders passed under the disciplinary proceedings. State

of Punjab v. Baldev Singh, 1998(9) SCC 325: 1998(8) JT 423(1): 1999(1) LLJ 254:

1999(1) LLN 18: 1999(81) FLR 303.


10. Reduction to a Lower Rank than Initial Recruitment — Punishment

imposable in a disciplinary action could not be of reversion to a rank lower than the

initial recruitment itself. Babaji Charan Rout v. State of Orissa, (1982) 1 SLJ 496:

(1981) 3 SLR 189: 1982 Lab IC 603.

But Andhra Pradesh view is that even where an employee is directly recruited

to a particular post, a disciplinary authority is competent to impose the penalty of

reduction to a lower post. Mahendra Kumar v. Union of India, (1983) 3 SLR 319 (AP).

11. Lower Scale Post Offered on Medical Un-fitness — Normally an

employee who is medically unfit for service would be invalidated or discharged.

Appellant who was an Engine Driver having been found medically unfit for the post

was offered the post of Pump Engine Driver for which he was found medically fit.

Scale of pay for this post is lower than the scale of pay of Engine Driver. In these


circumstances it can hardly be said that he was either punished or reduced in rank.

Mohammad Sagiruddin v. Divisional Mechanical Engineer, N.F. Rly, 1973 SLJ 553:

1973 (1) SLR 1098: AIR 1973 SC 1306: 1973(4) SCC 133: 1973 Lab IC 877.


12. Postponement of Future Increments — Where the petitioner was ordered

to suffer three increments having the effect of the postponement of his future

increments, held, if the effect of the order is the reduction of petitioner to a lower stage,

in the time- scale, it means the imposition of a major penalty and the imposition of such

a penalty contrary to rules framed under the proviso to Article 309 of Constitution is

liable to be quashed. C. Veera Chowdaiah v. State of Mysore, 1973 (1) SLR 241: 1973

SLJ 700.

Reversion

13. Effect of reversion — The relationship of master and servant between the

employee and the employer continues in case of reversion. Public Services Tribunal

Bar Association, State of U.P., 2003 (4) SCC 104.

14. High Court Posted ADJ as SSJ without Order of Reversion by State

Govt. — High Court requested the State Government to revert the petitioner from the

post of Additional District and Sessions Judge. Although no order of reversion was

passed by the State Government, High Court directed the petitioner to hand over charge

as Additional District and Sessions Judge and posted him as Senior Subordinate Judge.

Held, the order was in excess of powers and therefore invalid. A.N.Bhoil v. Union of

India, 1973 (2) SLR 726; Barada Kanta Misra v. High Court of Orissa, AIR 1976 SC

1899: 1976 Supp SCR 1046: 411: 1978 HLR 473: 1976 SLJ 529: 1976 Lab IC 1202:

(1977) 1 SCJ 172.

15. Reversion as a Result of Adverse Entries in Service Record — Order of

reversion as a result of adverse entries in service record attracts the provisions of

Art.311. Satish Chandra Mital v. State of U.P., 1975 (1) SLR 65; Santosh Kumar

Mahapatra v. State of Orissa, 1975 Lab IC 1464; Union of India v. S.B.Chatterjee,

1980 (2) SLR 365; Dulal Kumar Mazumdar v. State of West Bengal, 1981 (2) SLR 780.

Rattan Singh v. Union of India, (1990) 7 SLR 548.

Petitioner”s name was removed from the promotion list (Punjab Police Rules)

without show cause notice and was reverted from officiating post. Adverse remark of

drunkeness was made around him during the same period. Reversion was held penal and

illegal without show cause notice. Deep Chand v. State of Haryana, (1983) 1 SLR 158

(P&H).

16. Reversion for Administrative Reasons — The reversion of a probationer

or a person appointed on a post temporarily may be either in the ordinary course for

administrative reasons in accordance with the rules of service or it may be as a measure

of punishment. Where it is ordered as a measure of punishment, Art 311 will be

attracted and not otherwise. Shrikrishna Agarwal v. State of M.P., AIR 1970 MP 162.

G. Venugopal v. Director of Administrator Appellate Authority, 1993 (4) SLR 81 (CAT

Hyderabad); M.K. Jain v. Rajasthan Financial Corporation, (1986) 1 SLR 95 (Raj).


Petitioner was promoted against a temporary post on a temporary basis. Before

he is reverted on administrative ground or in the exigencies of service, he cannot claim

any hearing. Diwan Chand v. State of Haryana, 1982 (1) SLR 338.

A candidate who holds a post after succeeding in qualifying test, has a vested

right to hold such post. Reversion of such candidate merely because of some

administrative problem held to be not proper. Union of India v. Dev Raj, 2001 (6) SLR

699 Del (DB).

17. Reversion for Collateral or Extraneous Purpose — Power of reversion

used for collateral or legally extraneous purpose is misuse of power. State of Mysore v.

P.R. Kulkarni, 1972 SLR 795: AIR 1972 SC 2170: 1973(3) SCC 597: 1972 Lab IC

1280.

18. Reversion for Failing to Pass Departmental Examination — The order

reverting an employee on the ground that he has failed to pass the departmental

examination within the period prescribed under the rules does not amount to reduction

in rank and Art. 311 of Constitution will not apply. Suraj Bahadur Saxena v. Central

Board of Excise and Customs, 1973 (2) SLR 200; Union of India v. Gajendra Singh,

(1972) 1 SCWR 601: AIR 1972 SC 1329: 1972(3) SCR 660: 1973(3) SCC 797: (1973)

1 SCJ 265; Darshan Singh v. State of Punjab, 1980 (3) SLR 345; Satyadeo Singh v.

State of Bihar, 1981 (3) SLR 671.

Where no examinations were held, there is no question of reversion on ground

of failure to pass examination. State of Maharashtra v. Chandrakant Anant Kulkarni,

AIR 1981 SC 1990: 1982(1) SCR 665: 1981(4) SCC 130: 1981 SCC (Lab) 562: 1981

(3) SLR 326 (SC): 1981 (2) SLJ 280: 1982 (1) SLR 697.

19. Reversion for not Qualifying Test Prescribed After Promotion — It was

not open to the Government to prescribe any qualifications for the existing personnel

after they had been promoted without any condition as to the acquisition of the

prescribed qualification by mere executive instructions. The petitioner, it was held

could not be reverted. Harjit Singh v. Inspector General of Police, Haryana 1969 Cur

LJ 966: 1969 SLR 845; Chief Secretary to Govt. of Mysore v. S.C.Chandraiah, 1967

SLR 155 (SC); Mrs. J.K. Pritam Singh v. State of Punjab, 1967 SLR 251; See also State

of Karnataka v. B.V. Thimmappa, 1993 (5) SLR 266 and Krishna v. Superintendent of

Police, 2002 (3) SLR 588 Kant (DB).

20. Reversion for Misconduct — If watchman in Marine Products Export

Promotion Authority was appointed as messenger on compassionate ground on

probation for two years, it was not a promotion post and there was no change of

emoluments. He was reverted on the ground of misconduct during probation period. It

was held that such reversion could not be ordered without proper inquiry. O. P.

Kumaran v. Marine Products Export Development Authority, (1983) 2 SLR 57: (1983)

1 SLJ 480 (Ker).

However in another case where the candidate was working on a probation basis

in a temporary cadre, it was held that the candidate does not get permanent status and she

could always be reverted especially when the falsification of records by the candidate is

apparent on record. Sheela Rani v. State of Haryana, 2002 (2) SLR 326 P&H.


21. Reversion for Unfitness — Reversion from temporary post in higher

service of grade to substantive post in lower grade of service on account of unfitness to

hold high officiating post is not reduction in rank. Harbans Lal Nihal Chand v. Supdt.

of Police, AIR 1969 Punj 131; Divisional Officer v. S. Raghavendrachari, AIR 1966 SC

1529: 1966(3) SCR 106: 1967(1) LLJ 401: (1966) 2 SCJ 535.

Confirmed employee can be discharged only on the grounds of continued

inefficiency or dishonesty, Wasim Beg v. State of Uttar Pradesh, AIR 1998 SC 1291:

1998(3) SCC 321: 1988(2) JT 354: 1998(2) SLR 174: (1998) 2 SCJ 54.

22. Reversion for Unsatisfactory Conduct or Misconduct — The Order of

reversion on the ground of unsatisfactory conduct casts a slur on the employee. It is not

a simple order of reversion but casts a stigma. Union of India v. Hemanta Kumar Das

Choudhury, 1971 Lab IC 101. However see, N. Subramaniam v. D.P.O., S.E.Rly., AIR

1970 Orissa 12, wherein it was held that mere indication of reason does not amount to

punishment. See also, Kalam Das v. Chief Electoral Officer, 1977 (1) SLR 726.

A Division Bench of Rajasthan High Court in Union of India v. S.B.

Chatterjee, 1980 (2) SLR 365 after careful consideration and a comprehensive survey

of almost all the relevant judgments of Supreme Court on the point came to the

conclusion that if the foundation of the order of reversion is the misconduct or

negligence, then Art 311(2) is attracted, but if the misconduct or negligence is mere

motive and not the foundation, then Art 311(2) will have no application. See also Ram

Kishore Tiwari v. High Court of Judicature, M.P., 1981 (2) SLR 47.

23. Reversion for Unsatisfactory Work — When a person officiating in a post

is reverted for unsatisfactory work, it cannot be said that his reversion would amount to

reduction in rank. Divisional Personnel Officer v. S. Raghvendrachari, AIR 1966 SC

1529: (1966) 2 SCJ 535; Anirudh Singh v. Sub-Divisional Magistrate, Chandausi, 1973

(2) SLR 269; S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184:

1976(1) SCC 236: 1975 Lab IC 1748: 1976 SLJ 271: 1975 (2) SLR 740; State of

Mysore v. M.K. Gadgoli, AIR 1977 SC 1617: 1977(1) SCC 469: 1977 Lab IC 847:

(1977) 2 SCJ 299: State of Maharashtra v. V.G. Koppar, AIR 1981 Bom 131.

24. Reversion for Unsuitability or Inefficiency — (i) It is well settled that a

Govt. servant who is officiating in a post has no right to hold it for all times and Govt.

servant who is given an officiating post holds it on the implied term that he will have to

be reverted if his work was found unsuitable. In a case of this description a reversion on

the ground of unsuitability is an action in accordance with the terms of the officiating

post is held and not a reduction in rank by way of punishment to which Art. 311 of the

Constitution could be attracted. Union of India v. R.S. Dhaba, (1969) 1 SCWR 922:

1969 Cur LJ 461; State of Assam v. Biraja Mohan Deb, (1969) II SCWR 583; M.C.

Shrinivasa v. Collector of Central Excise, AIR 1970 Mysore 238; State of Haryana v.

Mulkh Raj, AIR 1970 P&H 415; Fateh Singh Chuga v. State of Punjab, AIR 1970 P&H

315; Dr. Kanwharchand v. State of M.P., 1976 SLJ 535; State of Mysore v. M.K.

Gadgoli, AIR 1977 SC 1617: 1977(1) SCC 469: 1977 Lab IC 847: (1977) 2 SCJ 299.

(ii) When a civil servant officiating in a higher service, grade or post is

considered unsuitable for such a service, grade or post, his reversion is neither


punishment nor reduction in rank. State of Bombay v. P.A. Abraham, AIR 1962 SC 794:

1962 Supp(2) SCR 92: (1962) 2 SCJ 1683; Jagdish Mitter v. Union of India, AIR 1964

SC 449: 1964(1) LLJ 418; Champak Lal Chiman Lal Shah v. Union of India, AIR 1964

SC 1854: (1964) 5 SCR 190: 1964(1) LLJ 752; S.K. Das Gupta v. O.N.G. Commission,

AIR 1970 Gujarat 149; Secretary to Govt. of West Bengal v. Ram Chandra Chaudhury,

AIR 1973 Cal. 222; S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2)

SCR 184: 1976(1) SCC 236: 1975 (2) SLR 740: 1976 SLJ 271; H. Krishnamurthy v.

State of Karnataka, 1981 (1) SLJ 590: 1982 Lab IC 397.

(iii) Unsuitability for the job may arise out of a number of

circumstances which may or may not include his efficiency, his conduct or his

desirability for the post concerned. The word “unsuitable” is a very wide word which

takes in other cases than cases of inefficiency, undesirability, unsatisfactory conduct

etc. That being so, it cannot be held that if a Government servant is found unsuitable for

a job, any stigma is cast upon him. Syed Abbas Hussain Nagri v. State of A. P., AIR

1971 AP 1 (FB) : 1971 Lab IC 30.

(iv) Reversion for inefficiency. Order casts stigma. Lakshman Swaroop Sharma

v. State of U.P., 1975 (1) SLR 200: 1975 Lab IC 34.

25. Reversion on Abolition of Post — Petitioner was appointed to a temporary

post temporarily. Post was made permanent but subsequently it was abolished.

Petitioner was reverted to his substantive post. Held, he was not removed from service

by way of penalty and Art. 311 does not apply. Government is fully entitled either to

create or abolish a post. Gian Chand Jain v. State of Haryana, 1968 SLR 752. See also

Amanulla v. Union of India, (1989) 7 SLR 658 (CAT Cal.). See also Mahesh Kumar

Mudgil v. State of Uttar Pradesh (1998) 1 SCJ 266.

Appellant was reverted to his parent department to a non-gazetted post. He did

not join the post on the plea that although he had become quite senior in his parent

department, he was reverted to a non-gazetted post. If the appellant had cared to join

there, it would have been open to him to make a representation for his appointment on a

proper post with due regard to his seniority and service record. If he did not do so, and

stayed away from his parent department, it is not open to him to argue that he was not

given a proper post there. Kedar Nath Bahl v. State of Punjab, AIR 1979 SC 220: 1979(1)

SCR 1089: 1978(4) SCC 336: 1979(1) SLR 288: 1979 SLJ 105: 1978 Lab IC 1765.

The legal position is settled beyond dispute now that even in Government

establishments when retrenchment has to be made, the practice of retrenching the junior

officers first has to be done. Biswamitra Agasti v. State of Orissa, 1982 Lab IC 473.

26. Reversion Before Fixed Term — Where temporary appointment to

officiate in a post for a fixed term was made, it was held that reversion before the date

fixed was premature termination and illegal. Prasanta Mahapatra v. State of Orissa,

AIR 1969 Orissa 61; see other view in Fateh Singh Chuga v. State of Punjab, AIR 1970

P & H 315; Bhagwan Dass v. State of Punjab, 1967 SLR 240 (Punjab). State is not

competent to cancel the selection with the provisions of Art. 311(2) of the Constitution.

P. Viswanathan v. Post Master General, A.P., 1983 (1) SLJ 58.


Petitioner was appointed to a temporary post temporarily. Post was made

permanent but subsequently it was abolished. Petitioner was reverted to his substantive

post. Held, he was not removed from service by way of penalty and Art. 311 does not

apply. Government is fully entitled either to create or abolish a post. Gian Chand Jain

v. State of Haryana, 1968 SLR 752. See also Amanulla v. Union of India, (1989) 7 SLR

658 (CAT Cal.). See also Mahesh Kumar Mudgil v. State of Uttar Pradesh (1998) 1

SCJ 266.

27. Reversion Before Tenure Period — I.A.S. officer of State cadre when

appointed at the Centre holds tenure post and is not on deputation. Reversion to State

before tenure period is reduction in rank as rank at the Centre is higher. Debesh

Chandra Das v. Union of India, (1969) II SCWR 1: AIR 1970 SC 77: 1970(1) SCR

220: 1969(2) SCC 158: 1969 SLR 485: (1970) 1 SCJ 16.

28. Reversion on Request — Civil servant reverted to lower post on his own

request. He could not retain lien on the post from which reverted. Amrit Rao Kamerikar

v. State of M.P., 1970 SLR 577.

29. Reversion with Loss of Pay — (i) Reversion in all officiating

appointments would necessarily lead to loss of benefit of higher pay, but then itself

cannot indicate that the reversion was by way of punishment. Union of India v. R.S.

Dhaba, (1969) 1 SCWR 922: 1969 SLR 442; N. Subramaniam v. Divisional Personal

Officer, S.E. Rly, AIR 1970 Orissa 12; Pallikoiloth Shyama Prasad v. Chief

Commissioner, 1970 SLR 161: 73 Cal WN 939; Chander Singh v. State of Rajasthan,

1973 (1) SLR 289.

(ii) Appellant, a member of I.C.S. was allotted to Assam. He was appointed

Secretary to the Govt. of India at Rs. 4,000/-. Reverted to Assam where highest pay is

Rs.3,500/-. He held tenure post at Delhi. His reversion to Assam means a reduction in

rank with a stigma upon his work without following procedure laid down in Art. 311(2).

Dabesh Chandra Das v. Union of India, (1969) II SCWR 1: AIR 1970 SC 77: 1970(1)

SCR 220: 1969(2) SCC 158: 1969 SLR 485: (1970) 1 SCJ 16.

30. Reversion, Loss of Pay to be Determined from his Substantive Post —

When a person is reverted to the substantive rank, the question of penal consequences

in the matter of forfeiture of pay or loss of seniority must be considered with reference

to his substantive and not to his officiating rank for every reversion must necessarily

mean that the pay will be reduced to the pay of substantive rank. Shri Krishan Agarwal

v. State of M.P., AIR 1970 MP 162; Fateh Singh Chuga v. State of Punjab, AIR 1970

P&H 315.

31. Reversion with Retrospective Effect — (i) Appellant joined the Tripura

Civil Service and was posted as a probationer D.P.O. Tripura Civil Service was split

into two cadres. Senior officers were absorbed as S.D.O”s and junior officers as

S.T.O.I”s. Appellant was appointed as S.T.O. and some time later was appointed as

S.D.O. He was then reverted as S.T.O. He was suspended and then dismissed. He

challenged suspension and dismissal. The Court set aside the impugned order. He was

reinstated as S.O.S. and by the same order reverted to his substantive post of S.T.O.

with retrospective effect. The reason for reversion was that since another officer was


occupying the post of S.O.S., the post having been filled by another officer approved by

U.P.S.C. Order of reversion upheld. Naresh Chandra Saha v. Union Territory, Tripura, AIR

1970 SC 364: 1970(2) SCR 639: 1969(3) SCC 22: 1969 SLR 839: (1971) 2 SCJ 520.

(ii) Petitioners were reverted to the posts of senior clerks retrospectively with

effect from the date on which they were promoted as assistants. Held, impugned order

would not have amounted to a penalty, if thereby petitioners had been reduced in rank

prospectively, it entailed penal consequences because of its retrospective operation.

Sarwan Singh v. Union of India, AIR 1960 HP 24.

(iii) No retrospective reversion can be ordered. R. Jeevaratnam v. State of

Madras, 1967 SLR 657; Ram Singh v. State of Punjab, 1982 (1) SLR 892. K.V.

Donnikrishan Nair v. Director General, C.S.I.R. (1988) 7 SLR 684 (CAT)

(Earnakulam); J.S. Brah v. Central Warehousing Corp., 1997 (1) SLR 549 (MP).

32. Reversion Order – Indication of Reason Therein — The mere indication

of the reason in the order of reversion cannot amount to punishment. N. Subramaniam

v. D.P.O., S.E. Rly., AIR 1970 Orissa 12.

If the reasons are disclosed, then it is said that the order of the Government was

passed by way of punishment. If it does not disclose the reasons, then the argument is

that it is arbitrary and violative of Art. 16. You have to look to the order on the face of

it to find out whether it casts any stigma on the Government servant. State of

Maharashtra v. V.R. Saboji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466:

1979 Lab IC 1389: 1979 (2) SLR 527: 1979 SLJ 621.

33. Reversion Order Whether by Way of Punishment — (i) An order passed

maliciously or on collateral considerations on which involves penal consequences, or

denied to the civil servant, the guarantee of the Constitution or of the rules governing

his employment, is always open to challenge by appropriate proceedings as having been

passed by way of punishment. Jagdish Prasad Shastri v. State of U.P., (1970) II SCWR

723: 1970 SLR 938: AIR 1971 SC 1224: 1971(2) SCR 583: 1970(3) SCC 631: (1971) 2

SCJ 409. See also G. Venugopal v. Director of Administrator Appellate Authority, 1993

(4) SLR 81 (CAT Hyderabad).

(ii) Whether a particular order of reversion amounts to reduction in rank by

way of punishment cannot be decided merely on the basis of the terms of the order but

regard must be had to be the attendant circumstances also. Appar Apar Singh v. State of

Punjab, (1971) I SCWR 226: 1971 SLR 71: (1971) 2 SCR 890: 1970(3) SCC 338:

(1971) 2 SCJ 566: 1970(2) LLJ 686.

(iii) In Regional Manager v. Pawan Kumar, AIR 1976 SC 1766: 1976(3) SCR

540: 1976(3) SCC 334: 1976 Lab IC 1146: 1976 SLJ 387: 1976 (2) SLR 44 Supreme

Court held that sudden reversion for the reason that respondent was “not fit yet” in the

reversion order could be held to amount to an unjustified stigma which could not be

said to be devoid of an element of punishment.

34. Reversion When by Way of Punishment — If the reversion involves

penal consequences or in the order of reversion there is anything which would effect his

future promotion or if the civil servant has right to a particular rank, then the very


reduction from rank will operate as a penalty. P.L. Dhingra v. Union of India, AIR

1958 SC 36: 1959 SCR 828: 1958 SCJ 217: 1958(1) LLJ 544; Madhavo Laxman v.

State of Mysore (1962) 1 SCJ 134: AIR 1962 SC 8: 1962(1) SCR 886; Ram Chandra

Chaudhri v. Secretary to Govt. of West Bengal, AIR 1964 Cal 265; Amrit Rao

Kamerikar v. State of M.P., 1970 SLR 577; K.H. Phadnis v. State of Maharashtra, AIR

1971 SC 998: 1971 Supp SCR 118: 1971(1) SCR 790: 1971(2) SLR 345: (1973) 1 SCJ 420.

No reasons whatsoever were assigned in the impugned orders of reversion. The

aggrieved employees officiating in higher posts were not even stated to be unsuitable in

higher posts. It cannot be contended that all the employees reverted from officiating

higher posts were suddenly found unsuitable without reference to their conduct during

the strike period. The irresistible inference is that the petitioners were reverted from

officiating higher posts to their substantive lower posts by way of punishment as they

absented from duties during the period of strike. S. N. Nagarajulu v. Railway Board,

1982 (2) SLJ 13: 1981 (3) SLR 305.

35. Reversion – Application of Art. 311 — The real test in cases of reversion

is to ascertain whether the officer concerned has a right to the post from which he is

reverted. If he has a right to the post then reversion is punishment and cannot be

ordered except in compliance with the provisions of Art. 311. If on the other hand he

has no right to the post, he can be reverted without attracting the provisions of Art. 311,

but the intention must not be to punish him or cast a stigma on the officer. State of U.P.

v. Sughar Singh, (1974) II SCWR 80: (1975) 1 SCJ 12: 1971 (1) SLR 435: 1974 SLJ

474; G.S. Gill v. State of Punjab, 1975 SLJ 167: 1974 (2) SLR 543; V.K. Singh (Mrs) v.

State of M.P., 1975 SLJ 60. See also Chandi Das Banerjee v. Union of India, (1990) 13

ATC 551 (Cal): (1990) 2 ATJ 278.

The order upgrading the posts does not show that the upgrading was of a

temporary character nor does the order promoting the respondents to the said posts

show that the promotion was on an officiating basis. It was not shown that any rule

prescribed that the promotion of an employee to the said posts shall initially be on an

officiating basis. The promotion, therefore, was on permanent basis and if that be so the

reversion of respondents must be held violative of Article 311 clause (2) of the

Constitution. Union of India v. Jagdish Prasad, AIR 1982 SC 773: 1982(1) SCC 421:

1982 Lab IC 441: 1982 (2) SLJ 7.

36. Natural Justice: Before reverting an employee as a result of

representations received from other employees rules of natural justice must be

observed. Jatinder Pal v. State of Punjab, (1983) 1 SLR 551 (P&H). See also Pooran

Chand v. Municipal Committee, (1989) 1 SLR 210 (P&H), S. Sthiah v. Secretary, Min.

of Railways, (1991) 2 SLR 205 (CAT Madras); Ishwarlal G. Vyas v. Union of India,

(1990) 3 SLR 177 (CAT Ahmedabad). Reversion without giving opportunity of hearing

is bad in law. B.N. Malhotra v. State of Haryana, 2003 (1) SLR 366 P&H; Kasturi Lal

Kashyap v. State of Punjab, 2002 (6) SLR 131 P&H; Dharampal v. State of Haryana,

2001 (6) SLR 315 P&H (DB).

37. Reversion: Likely Impact on Promotion — Where reversion of an

Inspector of Police to the post of sub-Inspector alongwith removal of his name from list

F is ordered, opportunity of hearing should be given before the order is passed as it


disentitled the employee from being considered for promotion. However, mere

reversion in itself does not attract Article 311(2) of the Constitution. Richhapal Singh v.

I.G.P., Haryana, (1983) 1 SLR 399 (P&H). Bimalesh Kumar Chakraborty v. Union of

India, (1988) 7 SLR 193 (CAT Cal.); Prakash Lal v. Superintendent of Police, (1989) 7

SLR 571 (HP AT); Varinder Kumar v. State of Punjab, (1988) 1 SLR 435 (P&H).

38. Reversion Order : Test for Attracting Art. 311(2) — The test for

attracting Article 311(2) of the Constitution is whether the misconduct or negligence is

a mere motive for the order of reversion or termination of service, or whether it is the

very foundation of termination of service of the temporary employee. Champaklal

Chimanlal Shah v. Union of India, (1964) 5 SCR 190: AIR 1964 SC 1854: 1964(5) SCR 190.

The undesirable conduct on the part of respondent might have been the motive

for reverting him to his old post, such reversion cannot be termed as penalty or

punishment. Oil and Natural Gas Commission v. Dr. Md. S.Iskander Ali, AIR 1980 SC

1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 SLJ 591: 1980 (2)

SLR 792; Union of India v. P.S. Bhatt, 1981(2) SCC 761: AIR 1981 SC 957: 1981 Lab

IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981 SCC (Lab) 460: 1981(2) SCJ 65:

1981(2) SCWR 88.

The Supreme Court has taken the view that if the very foundation of the order

of reversion is the misconduct or negligence then Art.311(2) is attracted, but if the

misconduct or negligence is mere motive and not the foundation, then Art.311(2) will

have no application. Union of India v. S.B. Chatterjee, 1980 (2) SLR 365; Ram Kishore

Tiwari v. High Court of Judicature, M.P., 1981 (2) SLR 47.

The petitioner was accused of gross misconduct which calls for punishment

after disciplinary action. The mere fact that disciplinary proceedings were not held are

not sufficient to hold that the impugned order of reversion is not punitive. Smt. Maria

T.S. da Moraise Almeida v. Union of India, 1982 (1) SLJ 136.

39. Reversion : Junior Allowed to Continue — The respondent was reverted

when at least 200 other officers who were junior to him in substantive cadre. That

would make the order liable to be struck down as violative of Art.16 of the

Constitution. Reference may be made to State of Mysore v. P.R. Kulkarni, 1970 SLR

795: AIR 1972 SC 2170: 1973(3) SCC 597: 1972 Lab IC 1280 wherein order of

reversion was struck down by Supreme Court on the ground of “unjustifiable

discrimination”. Order set aside having been passed by way of punishment. State of

U.P. v. Sughar Singh, 1974 (1) SLR 435: 1974 SLJ 474: AIR 1974 SC 423: 1974(2)

SCR 335: 1974(1) SCC 218: (1975) 1 SCJ 12; Lt. Governor of Delhi v. Dalip Singh,

1976 (2) SLR 156.

The petitioner was promoted as Naib Tehsildar. He challenged the reversion on

the ground that six of the respondents were junior to him who were working as Naib

Tehsildar. The reply of the State was that the said six respondents had qualified the

prescribed test for becoming Naib Tehsildar candidate whereas the petitioner failed to

pass the test. Held, the petitioner was rightly reverted. Darshan Singh v. State of

Punjab, 1980 (3) SLR 345. Also, see Notes 34 & 35.


When similarly rather worst situated i.e. illiterate candidates were continuing,

reversion of the petitioner was held to be not proper. Laxmi Chand v. Haryana Vidyut

Prashan Nigam Ltd., 2002 (2) SLR 637 SC.

40. First Come Last Go — The reversion should be in the order of their

seniority on the principle “first come last go”. Sudershan Sood v. State of Punjab, 1969

Cur LJ 846: 1969 SLR 715; Hari Kishan Lal Chopra v. State of Punjab, 1974 SLJ 1;

Biswamitra Agasti v. State of Orissa, 1982 Lab IC 473.

A Division Bench of Delhi High Court held, “It is well settled that if there are a

number of posts in a cadre and some of the posts are abolished, it is not the incumbent

of the post which is abolished who is liable to be reverted, but the axe would ordinarily

fall on the junior most in the cadre. This is so because the rule of “Last come must first

go” does not strictly apply to the service under the State and even though ordinarily the

State may follow such a wholesome to practice may, for good reasons, decide to retain

the junior most in preference to the comparative senior one if there are valid

administrative grounds, such as competence, record of service, etc. which may justify

such a departure. Kuldeep Chand Sharma v. Delhi Administration, 1978 SLJ 461: 1978

(2) SLR 379.

41. Reversion with Stigma — (i) Respondent who was a Head Assistant was

promoted as A.E.T.O. He was suspended and charge sheet was served on him.

Respondent filed reply. He was given another show cause notice as to why he should

not be reverted to his previous post. Respondent made reply to the show cause. He was

reverted to his substantive post. It is not a case of preliminary enquiry. It is a case in

which a formal enquiry was ordered and after the respondent had given reply to the

charges, the enquiry was then dropped, and he was reverted. It is evident that he was reverted.

In consequence of charges of misconduct, which charges, he had not the

opportunity to dispose in the enquiry that should have been held into the same and the

existence of the same leaves a stigma on his service career, of which the effect is penal.

The reversion is against the provisions of Art.311(2). State of Punjab v. Vidya Prakash,

1969 SLR 732.

(ii) Where the order clearly states that the appellant was found totally

inefficient for this post and for that reason he was being reverted, the order casts a

stigma of inefficiency on the appellant. The order is illegal. Lakshman Swaroop Sharma

v. State of U.P., 1975 (1) SLR 200: 1975 Lab IC 34.

(iii) In State of U.P. v. Virendra Nath Srivastava, 1969 ALJ 1039: 1970 SLR

48, it was held that sudden reversion of the respondents to their lower substantive posts

while allowing their juniors to officiate in higher posts, casts an aspersion on their

professional ability and previous record of service and without giving opportunity to

show cause was in violation of Article 311. Supreme Court in Regional Manager v.

Pawan Kumar Dubey, AIR 1976 SC 1766: 1976(3) SCR 540: 1976(3) SCC 334: 1976

SLJ 387: 1976 (2) SLR 44, held that sudden reversion for the reason that the

respondents were “not fit yet” in the reversion order, could be held to amount to an

unjustified stigma which could not be said to be “devoid of an element of punishment”.


The reversion order was quashed and the authorities were directed to consider case of

respondent on merits along with others who may be eligible to officiate in the post.

42. Reversion Without Stigma, Motive of Order — (i) The order of reversion

contained no adverse remarks against the appellant nor can it be said that any stigma

attaches to him because of the order. If the authorities came to the conclusion that

pending the holding of an open enquiry into the charges of corruption against him, he

should not be allowed to officiate in a higher post, it cannot be inferred therefrom that

the reversion was by way of punishment. The existence of such a motive cannot vitiate

the order of reversion. R.S. Sial v. State of U.P., (1974) 2 SCJ 333: 1974 (1) SLR 827:

(1974) 1 SCWR 749: AIR 1974 SC 1317: 1974(3) SCR 754: 1975(3) SCC 111: 1974

SLJ 396.

(ii) Where the order of reversion in case of a person who had no right to the

post, does not show ex facie that he was being reverted as a measure of punishment or

does not cast any stigma on him, the Court will not normally go behind that order to see

if there were any motivating factors behind that order. S.P. Vasudeva v. State of

Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 (2) SLR 740:

1976 SLJ 271: 1975 Lab IC 1748.

(iii) The petitioner, a Sub Divisional Engineer was promoted as an Executive

Engineer and put on probation. He was reverted by the impugned order which is

innocuous. In the written statement the State took a definite stand that during the period

petitioner was officiating as Executive Engineer his integrity was found doubtful and

the order of reversion had been passed after considering the confidential reports earned

by the petitioner during the first two years of his probation period. Held, when the

motive of the order was punishment, it could not be passed without following the

provisions of Art. 311(2) and cannot be upheld. O.P.Behl v. State of Haryana, 1981 (1)

SLR 96.

43. Reversion Order, Form of Order not Conclusive of its Nature — It may

be that an order which is innocuous on the face and does not contain any imputation of

misconduct is a circumstance or a piece of evidence for finding whether it was made by

way of punishment or administrative routine. But the entirety of circumstances

preceding or attendant on the impugned order must be examined and the overriding test

will always be whether the misconduct is a mere motive or is the very foundation of the

order. If the order is made by way of punishment, provisions of Art. 311(2) have to be

complied with. State of Bihar v. Shiv Bhikshuk Mishra, (1970) II SCWR 606: (1971) 2

SCJ 68: AIR 1971 SC 1011: 1971(2) SCR 191: 1970(2) SCC 871: 1970 SLR 863;

Appar Apar Singh v. State of Punjab, (1971) 1 SCWR 226: (1971) 2 SCJ 566: 1971

SLR 71; Kalam Das v. Chief Electoral Officer, 1972 Simla LJ 406: AIR 1972 HP 131.

44. Reinstated and Reverted — Appellant suspended and thereafter

dismissed. Orders set aside by Court. Appellant reinstated in the post and by the same

order reverted to his substantive post, the post in which he was officiating having been

filled by another officer approved by U.P.S.C. Order held valid. Naresh Chandra Saha

v. Union Territory of Tripura, AIR 1970 SC 364:1970(2) SCR 639: 1969(3) SCC 22:

1969 SLR 839: (1971) 2 SCJ 520.


45. Reversion on Acceptance of Representation of Respondent — Reversion

not by way of punishment or because he was not approved by Public Service

Commission but as a consequence of the acceptance of the representation of R.2.

Reversion did involve civil consequence for the petitioner. In these circumstances, it

was incumbent on the Government to give notice to the petitioner to show cause against

the representation of R.2. Non-issue of that notice violated the principles of natural

justice. S. Hardayal Singh v. State of Punjab, 1970 SLR 903; Mangilal v. Union of

India, 1981 (1) SLR 745: 1982 (2) SLJ 551: 1982 Lab IC 1106.

46. Reversion: Railways — Railway Establishment Code Rule, 157,

prohibiting reversion after expiry of two years, does not apply to persons promoted on

ad hoc basis. Ravi Dutt v. Union of India, (1983) 2 SLR 332, 336, 337 (P&H).

47. Reversion: Policy Decision — On the formation of the Food Corporation

of India, employees of the Ministry of Food were transferred to that Corporation and a

decision was taken that employees who had been promoted ad hoc and transferred

regularly should have been taken to have completed the one year period and

regularised. However, petitioner satisfied this condition but was nevertheless reverted.

This reversion was held to be illegal. H.N.Bharati v. Food Corporation of India, (1983)

2 SLR 235 (P&H).

Upper Division Clerk in E.S.I. office was subjected to disciplinary proceedings.

Reversion to the post of Lower Division Clerk for a period of five years was ordered. It

was held that the disciplinary authority was competent to give directions regarding

conditions of restoration to the grade or post or service from which the employee was

reverted. G.Venugopal v. Director of Administration, Appellate Authority, (1993) 4

SLR 81 (CAT Hyderabad).

48. Reversion: Ad hoc Ex-serviceman — An ad hoc employee was appointed

against a post reserved for ex-Emergency Commission Officer. He was reverted and

replaced by a person not belonging to category of ex-serviceman. The reversion was

held to be illegal. B.K. Sachdev v. State of Haryana, (1983) 1 SLR 563 (P&H).

49. Reversion due to qualification — Where appointment was made to the

post of peon, on compassionate grounds fully knowing the qualification of the

candidate, subsequent order of reversion on the ground that his qualification was less

then the prescribed, held contrary to Rules which provided reversion only on the ground

of unsatisfactory work. Anil Kumar v. State of Punjab, 2003 (3) SLR 717 P&H (DB).

50. Reversion after long officiation— Where a person had held the post of

District Inspector for 11 years, his reversion on the ground that the appointment was

irregular or temporary, was held to be unfair after he had served for over a decade in

that post. M.A. Hameed v. State of A.P., 2001 (7) SLR 718 SC; Similarly for reversion

after 21 and 25 years, see A.T. Nathamuni v. D. Arumugam, 2002 (4) SLR 483 Mad.

51. Reversion under court orders— Where promotion was wrongly made

which were set aside by the division bench of High Court, the candidate was

subsequently reverted, it was held that the order of reversion was not bad in law. D.

Narsimhulu v. A.P. Legislative Assembly, 2003 (3) SLR 475 AP (DB). See also

Rajinder Singh v. State of Punjab, 2003 (2) 258 P&H (DB).


52. Reversion while on Deputation — Civil servant is on deputation. If the

other Government is willing to retain him on the post on which he is deputising, the

parent Government has no right to pass orders of his reversion and direct the other

Government to post him on the lower post. Sudershan Sood v State of Punjab, 1969 Cur

LJ 846: 1969 SLR 715. For probationer see Mehar Singh Capt. v. Indian Council of

Agricultural Research, ATR 1990 (1) 608 (CAT) (Chandigarh).

53. Reversion on Being Recalled — Services of petitioner were placed at the

disposal of Beas Project Authorities for appointment as Executive Engineer. On the

report of borrowing authorities, he was recalled and appointed to his substantive post of

Assistant Engineer. Order of recall and appointment does not amount to reduction in

rank. Joginder Singh v. State of Punjab, 1969 Cur LJ 58.

54. Reversion from Deputation for Unsuitability — A reversion on the

ground of unsuitability is in consonance with the terms on which the officiating post is

held. Such a reversion cannot be considered to be a reduction in rank by way of

punishment to which Art.311 could be attracted. Nau Nihal Singh v. Union of India,

1971 Lab IC 1267: 1971 (1) SLR 566 (Delhi); S.P. Vasudeva v. State of Haryana, AIR

1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 Lab IC 1748: 1975 (2) SLR

740: 1976 SLJ 271; Kalam Singh v. Chief Electoral Officer, 1977 (1) SLR 726. See also

M. Venkatanarayana v. General Manager, South Central Railway, (1983) 3 SLR 486 (AP).

55. Reversion from Deputation by Way of Punishment — The appellant

while on deputation was holding a post in higher scale of pay. He was reverted neither

because the temporary post on which he was working was abolished nor because he was

found unsuitable to continue. The parent department also did not want him back. Held,

reversion by itself will not be a stigma, but if there is evidence that the order of

reversion is not “a pure accident of service” but an order in the nature of punishment,

Art. 311 will be attracted. Order of reversion under the circumstances of the case was

found an act of punishment and reduction in rank. Order set aside. K.H. Phadnis v.

State of Maharashtra, (1971) 1 SCWR 532: AIR 1971 SC 998: 1971 Supp SCR 118:

1971(1) SCC 790: 1971(2) SLR 345: 1971 Lab IC 721: (1973) 1 SCJ 420; C. Thiraviam

Pillai v. State of Kerala, 1976 (2) SLR 395 and 571.

56. Replacement of Services as Work and Conduct Unsatisfactory —

Petitioner was working in Welfare Department and was appointed as a temporary

Kanungo in Election Department. He was reverted to Welfare Department after six

years as his work and conduct was found unsatisfactory by his immediate officer. He

was not called upon to explain and nothing went out of office to cast aspersion upon

him or to put stigma upon his career. Held, the order of reversion was not by way of

punishment. Kalam Das v. Chief Electoral Officer, 1977 (1) SLR (1) 726.

57. Officiating and Temporary Servants Entitled to Protection in Same

Manner as Permanent Servants — It is well settled that officiating and temporary

Government servants are also entitled to the protection of Art. 311 (2) in the same

manner as permanent Government servants, if the Government takes action against

them by meeting out one of the punishment i.e. dismissal, removal or reduction in rank.

Appar Apar Singh v. State of Punjab, (1971) 1 SCWR 226: (1971) 2 SCJ 566: 1971

SLR 71; R.S. Sial v. State of U.P., (1974) 1 SLR 829: (1974) 1 SCWR 749: 1974 SLJ


396: (1974) 2 SCJ 333; State of Maharashtra v. V.G. Koppar, AIR 1981 Bom 131. See

also M. Venkatanarayan v. General Manager, South Central Railway, (1983) 3 SLR

486 (AP); Giridhari Behera v. State of Orissa, 1990 (2) SLJ 225 (CAT Bhubaneswar).

58. Reversion of Employee Appointed on Ad hoc Basis — Reversion of an

employee appointed/promoted purely on ad hoc basis will not attract Article 311 where

the order of reversion ex facie does not show that he was being reverted as a measure of

punishment or the order casts any stigma on him. The court will not normally go behind

the order to see if there was any motivating factor behind that order. S.P. Vasudeva v.

State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 Lab

IC 1748: 1976 SLJ 271: 1975 (2) SLR 740; Braij Nath Rai v. Union of India, 1976 (2)

SLR 425; Satyadeo Singh v. State of Bihar, 1981 (3) SLR 671. See also Lingraj

Tripathy v. State of Orissa, (1984) 2 SLR 569 (Orissa) (DB); Balkrishna Oza v. State of

Gujarat, 1997 (4) SLR 94 (Gujarat).

59. Challenge to proposed reversion — Challenge to a show cause notice

proposing to revert the candidates. The candidates entitled to give reply to show cause

and represent their case. It was held that the challenge to show cause at this stage by

writ petition was premature. Bhup Singh v. State of Haryana, 2002 (6) SLR 353 P&H

(DB)

A challenge to the order of reversion made after 8 years of passing of order

held to be highly belated especially in view of the fact that the candidate was a mere

probationer. Jai Prakash Gupta v. Board of Education, Haryana, 2001 (5) SLR 704

P&H (DB).

MAJOR PENALTIES

Clause (vii)

Explanation, (vii)

Compulsory Retirement

Superannuation

S Y N O P S I S

1. Compulsory retirement ... ............................................................................................... 190

2. Object of compulsory retirement ... ................................................................................ 191

3. Application of Article 16 of Constitution ... ................................................................... 191

4. Application of Article 311 (2) of Constitution ... ........................................................... 191

5. Compulsory retirement simpliciter ... ............................................................................. 192

6. General order for compulsory retirement ... ................................................................... 192

7. Fundamental Rule 56: Age of retirement of Central Civil Servants ... ........................... 192

Fundamental Rule 56 (a)

8. Compulsory retirement before attaining the age of superannuation ... ........................... 195

9. Retirement age ... ........................................................................................................... 195


10. Change in the age of retirement or superannuation ... .................................................... 196

11. Dispute about age of Civil servants ... ............................................................................ 196

12. Enquiry into correctness of date of birth after retirement ... ........................................... 196

13. Question as to age of Judge of High Court ... ................................................................. 196

Fundamental Rule 56 (c)

14. Age of superannuation of Ministerial Government servants who entered in service on

or before 31.3.1938 ... .................................................................................................... 197

Fundamental Rule 56 (d)

15. Extension of service or retention beyond the age of superannuation ... .......................... 197

16. Retention in service for purpose of enquiry ... ............................................................... 197

Fundamental Rule 56 (j)

17. “Public Interest” ............................................................................................................ 197

18. Compulsory retirement in “Public Interest” ... ............................................................... 199

19. Compulsory retirement and misuse of power ................................................................. 200

20. On overall assessment of service record ... ..................................................................... 201

21. Absence of words “public interest” in order ... ............................................................... 201

22. Compulsory retirement under F.R. 56 (j) – No opportunity to show cause

required .......................................................................................................................... 202

23. Compulsory retirement under F.R. 56 (j), does not involve civil consequences ............ 202

24. Fundamental Rule 56 (j), absolute right of authority to retire ... .................................... 203

25. Compulsory retirement under F.R. 56 (j), F.R. 7 is not attracted ... ............................... 203

26. Fundamental Rule 56 (j): Validity of ... ......................................................................... 204

27. Fundamental Rule 56 (j) (i): Application of ... ............................................................... 204

28. Compulsory retirement under F.R. 56 (j)– Analysis of case-law .................................. 204

29. Intention of holding enquiry, then deciding to retire —

(ii) Dropping enquiry in progress and ordering compulsory retirement ... ..................... 205

(iii) Charges dropped: Compulsory retirement not based on any material, ... ............... 206

(iv) Charges dropped, Promoted, shortly thereafter compulsorily retired – Order

quashed ... ...................................................................................................................... 206

30. Compulsory retirement on account of Involvement in criminal case ............................. 206

31. Superannuation according to new rules, no penalty ....................................................... 206

32. Competency of authority to retire................................................................................... 206

33. Minimum period of service ............................................................................................ 207

34. Compulsory retirement before age of superannuation —

(i) Rules for .................................................................................................................... 207

(ii) On completing reasonably long period of qualifying service ................................... 207

(iii) On completing unreasonably short period of service .............................................. 207


(iv) For being unfit ... ..................................................................................................... 208

(v) For administrative reasons ........................................................................................ 208

(vi) For physical incapacity ............................................................................................ 208

(vii) For unsatisfactory record of service ....................................................................... 208

(viii) Saying employee outlived his utility ... ................................................................. 209

(ix) Without assigning reason ... ..................................................................................... 209

35. Compulsory retirement with stigma ... ........................................................................... 209

36. Compulsory retirement: Order with or without stigma ... ............................................... 209

37. Compulsory retirement: Application of principle of natural justice ... ........................... 210

38. Compulsory retirement: Speaking order not required nor opportunity of being heard ... 210

39. Compulsory retirement without giving reasonable opportunity to show cause .............. 210

40. Compulsory retirement with reduction of pension ......................................................... 211

41. Compulsory retirement and past record ... ...................................................................... 211

42. Victimisation ... .............................................................................................................. 211

43. Compulsory retirement on integration of State .............................................................. 211

44. Compulsory retirement and integrity .............................................................................. 211

45. Compulsory retirement and judicial review ................................................................... 212

46. Appropriate Authority to order compulsory retirement .................................................. 213

47. Appointing authority cannot delegate its power to issue notice to a subordinate ........... 213

48. Compulsory retirement by three month”s notice or salary in lieu of notice ................... 214

49. Notice pay or notice period ............................................................................................ 214

50. Notice to retire before age of 58 years ........................................................................... 214

51. Notice, date from which takes effect and period of ........................................................ 214

52. Order of compulsory retirement is not one for dismissal or removal unless it suffers

from any vice ................................................................................................................. 215

53. Well established propositions ... ..................................................................................... 215

54. Offer of retirement: Revocation of ................................................................................. 216

55. Voluntary retirement: Revocation .................................................................................. 216

56. Punishment of compulsory retirement based to a considerable extent on material not

produced during enquiry ... ............................................................................................ 216

57. Punishment of compulsory retirement for possession of disproportionate assets ... ....... 217

58. Wrong reference to power will not vitiate action if it can be justified under some other

powers .. ......................................................................................................................... 217

59. Notes below F.R. 56, part of the rule ............................................................................. 217

60. Voluntary retirement: Various points .. .......................................................................... 217

1. Compulsory Retirement — While a minimum service is guaranteed to the

Government servants the Government is given the power to compulsorily retire its

servants. Compulsory retirement can be made either by way of punishment or in

accordance with the provisions relating to their superannuation or retirement which


shall not amount to a penalty. The penalty of compulsory retirement can only be

imposed by following the procedure prescribed in these Rules and complying with the

provisions contained in Article 311(2) of the Constitution. Compulsory retirement

according to service rules as contained in Fundamental Rule 56 does not amount to

dismissal or removal and does not involve civil consequences.

2. Object of Compulsory Retirement — The object of premature retirement is to

see that the inefficient and incorrect persons are removed, but no sufficient material is

available to dismiss or remove them from the Government service after enquiry, and as such,

they are weeded out from service with a view to secure efficiency in public service and to

maintain honesty and integrity amongst the service persons. However, while taking a decision

to retire a Government employee, prematurely from the service, the Government has to

consider the entire record of the Government servant including the latest reports. K.I. Patel v.

M.N. Vaishnava, Chief Conservator of Forest, 1999(1) SLR 646 Guj.

The object and purpose of the rule of compulsory retirement have been

considered in series of decisions by the Supreme Court. The object of compulsory

retirement is only to remove such personnel from the Government service, who is found

lax, corrupt and inefficient or not up to the mark or has out-lived his utility and the

object or compulsory retirement is not to victimise the service personnel. Bahadur

Singh v. State of Rajasthan, 1981 (2) SLR 582 (Raj); Kartar Singh v. Punjab State,

1982 (1) SLR 307.

For compulsory retirement in public interest see State of Madhya Pradesh v.

Indra Sen Jain, AIR 1998 SC 982: 1998(1) SCC 451: 1997(9) JT 230: 1998(1) SLR 67:

(1998) 1 SCJ 305. See also Ram Pravesh Shrama v. Coal Mines Provident Fund

Orgnization, Delhi, 2004 (6) SLR 795 (Jharkhand)

3. Application of Article 16 of Constitution — Article 16 does not prohibit

the prescription of reasonable rules for compulsory retirement. T.C. Shivcharana Singh

v. State of Mysore, AIR 1965 SC 280: 1967(2) LLJ 246: 1967(15) FLR 224; P.

Radhakrishna v. Government of A.P., 1977 SLJ 211: 1977 (1) SLR 258: AIR 1977 SC

854: 1977(2) SCR 365: 1977(1) SCC 561: 1977 Lab IC 537.

4. Application of Article 311 (2) of Constitution — Article 311 deals with

termination of service. There are two exceptions to the protection afforded by Article

311 (2). First, where a permanent public servant is asked to retire on the ground that he

has reached the age of superannuation which is reasonably fixed. Secondly, where he is

compulsorily retired under the rules which prescribe the normal age of superannuation

and provide a reasonably long period of qualifying service after which alone

compulsory retirement can be ordered. Compulsory retirement under a valid rule does

not attract the provisions of clause (2) of Article 311 because such retirement is not

conceived as a penalty but as the exercise of the right reserved to Government of

retiring a Government servant after he has served for a certain length of time. Tara

Singh v. State of Rajasthan, AIR 1975 SC 1487: 1975(3) SCR 1002: 1975(4) SCC 86:

1975 (1) SLR 777: 1975 SLJ 619; Union of India v. S.A. Razak, 1980 Lab IC 1387: AIR

1981 SC 360: 1981(2) SCC 74: 1980(3) SLR 587; Baikunthanath Das v. Chief District

Medical Officer, 1982 (1) SLJ 648: 1981 (3) SLR 459; Kartar Singh v. Punjab State,

1982 (1) SLR 307.


An ex parte enquiry had been carried out by the Vigilance Department against

the petitioner. On the basis of the report of the Vigilance Department the Screening

Committee recommended for compulsory retirement and the petitioner was

compulsorily retired. Held, the order of compulsory retirement suffers from the vice of

inflicting punishment on the petitioner and is violative of Article 311 of the

Constitution. If the allegations against the petitioner were found to be substantiated by

the Vigilance Department, it was the bounden duty to hold an enquiry against the

petitioner for providing a proper opportunity to him rather than to have adopted this

short cut of removing him from service. Order quashed. Petitioner reinstated. Surendra

Shankar Awasthi v. State of U.P., 1982 Lab IC 548 (All).

5. Compulsory Retirement Simpliciter — Compulsory retirement simpliciter

does not amount to dismissal or removal or reduction in rank under Article 311 or under

the service rules. It is in fact compulsory retirement in accordance with the terms and

conditions of service. State of Haryana v. Inder Prakash Anand, AIR 1976 SC 1841:

1976 Supp SCR 603: 1976(2) SCC 977: 1976 (2) SLR 223: 1976 SLJ 497; Chief

Justice, A.P. v. L.V.A. Dixitulu, 1979 SLJ 332: (1979) 1 SLR 1: AIR 1979 SC 193:

1979(2) SCC 34.

It is no more res integra that premature retirement is not a punishment and the

employee who is ordered to prematurely retired from the Government service is entitled

to all pensionary benefits. What safeguard is provided is that there must be some

material on the record to form opinion and in case there is some material on record,

then the decision taken by the authority may not be subject to scrutiny of this Court,

unless the petitioner has made out a case of mala fide exercise of powers or where the

Government has taken resort to its powers of retiring its employee prematurely with the

object to punish the employee concerned. K.I. Patel v. M.N. Vaishnava, Chief

Conservator of Forest, 1999(1) SLR 646 Guj.

6. General Order for Compulsory Retirement — Where the general order for

compulsory retirement is applicable to all employees, the individual application of the

order in a given case cannot offend Article 16. P. Radhakrishna Naidu v. Government

of A.P., 1977 SLJ 211: 1977 (1) SLR 258: AIR 1977 SC 854: 1977(2) SCR 365:

1977(1) SCC 561. See also Union of India v. Dr. S. Baliar Singh, AIR 1998 SC 539:

1998(2) SCC 208: 1997(9) JT 287: 1998(1) SLR 103: (1998) 1 SCJ 348.

7. Fundamental Rule 56 : Age of Retirement of Central Civil Servant — Fundamental Rule 56 provides —

(a) Except as otherwise provided in this rule, every Government servant shall

retire from service on the afternoon of the last day of the month in which he attains the

age of fifty-eight years.

(b) A workman who is governed by these rules shall retire from service on the

afternoon of the last day of the month in which he attains the age of sixty years.

Note — In this clause, a workman means a highly skilled, skilled, semi-skilled,

or unskilled artisan employed on a monthly rate of pay in an industrial or a work-

charged establishment.


(c) A ministerial Government servant who entered Government service on or

before the 31st March, 1938 and held on that date —

(i) a lien or a suspended lien on a permanent post, or

(ii) a permanent post in a provisional substantive capacity under clause (d) of

Rule 14 and continued to hold the same without interruption until he was confirmed in

that post,

shall retire from service on the afternoon of the last day of the month in which he

attains the age of sixty years.

Note — For the purpose of this clause, the expression “Government service”

includes service rendered in a former Provincial Government.

(cc) A workman referred to in clause (b) or a ministerial Government

servant referred to in clause (c) may be granted extension of service under very special

circumstances to be recorded in writing after he attains the age of sixty years with the

sanction of the appropriate authority.

(d) A Government servant to whom clause (a) applies other than a workman

referred to in clause (b) or a ministerial Government servant referred to in clause (c),

may be granted extension of service after he attains the age of fifty-eight years with the

sanction of the appropriate authority if such extension is in public interest and the

grounds therefore are recorded in writing;

Provided that no extension under this clause shall be granted beyond the age of

sixty years except in very special circumstances.

(e) A Government servant in Group D (Class IV) service or post shall retire

from service on the afternoon of the last day of the month in which he attains the age of

sixty years:

Provided that a Group D (Class IV) employee of the Secretariat Security Force

who initially enters service on or after the 15th day of September, 1969 shall retire from

service on the afternoon of the last day of the month in which he attains the age of fifty-

eight years.

(f) Deleted.

(ff) Deleted.

(g) The President may by order direct that a Civil Engineer of the Public Works

Department shall retire on reaching the age of fifty years, if he has not attained the rank

of Superintending Engineer.

(h) Relates to Chief Engineer, P.W.D. and Consulting Engineer, not

reproduced.

(i) A military officer serving in a civil department shall cease to be in civil

employ on the date he attains the age of fifty-eight years.


(j) Notwithstanding anything contained in this Rule, the appropriate authority

shall, if it is of the opinion that it is in public interest to do so have absolute right to

retire Government servant by giving him notices of not less than three months in

writing or three months” pay and allowances in lieu of such notice:

(i) if he is in Group A (Class I) or Group B (Class II) service or post and

had entered Government service before attaining the age of thirty-five

years after he has attained the age of fifty years;

(ii) in any other case after he has attained the age of fifty-five years:

Provided that nothing in this clause shall apply to a Government servant

referred to in clause (c) who entered Government service on or before 23rd July, 1966.

(k) Any Government servant may by giving notice of not less than three months

in writing to the appropriate authority retire from service after he has attained the age of

fifty years if he is in Group A (Class I) or Group B (Class II) service or post and had

entered Government service before attaining the age of thirty-five years and in all other

cases after he has attained the age of fifty-five years;

Provided that —

(i) nothing in this clause shall apply to a Government servant referred to in

clause (e) who entered Government service on or before 23rd July, 1966, and

(ii) it shall be open to the appropriate authority to withhold permission to a

Government servant under suspension who seeks to retire under this clause.

(l) Notwithstanding anything contained in clause (j) the appropriate authority

shall, if it is of the opinion that it is in the public interest to do so, have the absolute

right to retire a Government servant in Group C (Class III) service or post who is not

governed by any pension rules, after he has completed thirty years service by giving

him notice of not less than three months in writing or three months pay and allowances

in lieu of such notice.

(m) A Government servant in Group C (Class III) service or post who is not

governed by any pension rules may by giving notice of not less than three months in

writing to the appropriate authority, retire from service after he has completed thirty

years service.

Note 1 : “Appropriate authority”. means the authority which has the power to

make substantive appointments to the post of service from which the Government

servant is required or wants to retire.

Note 2 : The three months notice referred to in clauses (j), (k), (l) or (m) may

be given before the Govt. servant attains the age specified in clause (j) and (k) or has

completed 30 years of service specified in clause (l) and (m), provided that the

retirement takes place after he has attained the relevant age or has completed 30 years

service as the case may be.

Note 3 : In computing the notice period of three months referred to in clauses

(j) and (m), the date of service of the notice and the date of its expiry shall be excluded.


Note 4 : A Government servant, including a workman, who is granted

extension of service after he has attained the prescribed age of superannuation, shall not

be promoted to another post during the period of extension.

Note 5 : The date on which a Government servant attains the age of fifty-eight

years or sixty years, as the case may be, shall be determined with reference to the date

of birth declared by the Government servant at the time of appointment and accepted by

the appropriate authority on production, as far as possible, of confirmatory documentary

evidence such as High School or Higher Secondary or Secondary School certificate or

extracts from Birth Register. The date of birth so declared by the Government servant

and accepted by the appropriate authority shall not be subject to any alteration except as

specified in this note. An alteration of date of birth of a Government servant can be

made, with the sanction of a Ministry or Department of the Central Government, or the

Comptroller and Auditor General in regard to persons serving in the Indian Audit and

Accounts Department, or an Administrator of Union territory under which the

Government servant is serving, if —

(a) a request in this regard is made within five years of his entry into

Government service,

(b) it is clearly established that a genuine bona fide mistake has occurred;

(c) the date of birth so altered would not make him ineligible to appear in any

school or University or Union Public Service Examination in which he had appeared, or

for entry into Government service on the date on which he first appeared at such

examination or on the date on which he entered Government service.

Note 6 : A Government servant whose date of birth is the first of a month shall

retire from service on the afternoon of the last day of the preceding month on attaining

the age of fifty-eight or sixty years, as the case may be.

Fundamental Rule 56 (a)

8. Compulsory Retirement Before Attaining the Age of Superannuation —

(i) When the rules fix both an age of superannuation and an age for compulsory

retirement, the services of a civil servant can be terminated between these two points of

time. Government can reserve to itself a right to ask any employee to retire on attaining

the age of compulsory retirement. Shyamlal v. State of U.P., AIR 1954 SC 369: 1955(1)

SCR 26: 1954 SCJ 493; Batahari Jena v. State of Orissa, (1971) 1 SCWR 643: AIR

1971 SC 1516: 1971 Supp SCR 352: 1971(2) SCC 232: 1971 Lab IC 948; Sahadev

Patnaik v. State of Orissa, 1974 (2) SLR 778.

(ii) Compulsory retirement as per the rules without any enquiry does not violate

Article 311 (2) of Constitution. Vithalrao Ram Chandra Ghorpade v. State of

Maharashtra, 1973 (1) SLR 255; Rahas Behari Rajguru v. State of Orissa 1981 (3)

SLR 78.

9. Retirement Age — Under the existing system there is no uniform retirement

age for all Government servants. The retirement age is fixed not merely on the basis of

the interest of the Government servant but also depending on the requirements of the


society. Union of India v. Col. J.N. Sinha, 1970 SLR 748: AIR 1971 SC 40: 1971(1)

SCR 791: 1970(2) SCC 458: 1971 Lab IC 8: (1971) 1 SCJ 655.

10. Change in the Age of Retirement or Superannuation — There is no

provision which takes away power of the Government to increase or reduce the age of

superannuation. Bishan Narain Mishra v. State of U.P., AIR 1965 SC 1576;

N. Lakshmana Rao v. State of Karnataka, 1975 (2) SLR 272: 1975 SLJ 560: 1975 Lab

IC 1121: AIR 1975 SC 1646: 1975 Supp SCR 328: 1976(2) SCC 502.

11. Dispute About Age of Civil Servants — (i) Where there is dispute about

the age, the civil servant has to be given an opportunity to show his correct date of

birth. Retirement without such opportunity amounts to his removal from service and is

null and void, being contrary to principles of natural justice. State of Orissa v. Dr.

(Miss) Binapani Dei, AIR 1967 SC 1269: 1967(2) SCR 625: 1967 SLR 465: (1967) 2

SCJ 339: (1967) 2 SCR 626: (1967) II SCWR 443; Daksha Prasad Deka v. I.G.P., AIR

1967 Assam 13; E. Rama Varama Raja v. State of Kerala, AIR 1969 Kerala 317: 1969

SLR 225 (F.B.); Laxmi Narayan v. State of Rajasthan, 1976 SLJ 660: 1977 (1) SLR 44:

Sardar Dewan Singh v. Union of India, 1977 (2) SLR 793; Dalip Singh v. State of

Punjab, 1982 (1) SLR 265.

(ii) There was a discrepancy which was rather wide since the year of birth,

according to one record was 1917, and according to another record 1927. In view of this

considerable discrepancy, the employer appointed its Medical Board to fix the age of

appellant and according to assessment of the age by the Medical Board, it was that he

was 51 on 13.6.1975. Supreme Court held “we see no reason to ignore this scientific

fixation of age” when we have records which are flagrantly conflicting”. Jiwan Kishore

v. Delhi Transport Corporation, AIR 1980 SC 1251: 1980 Supp SCC 678: 1980 SLJ

704: 1980 (2) SLR 513.

(iii) When the petitioner allowed two entries to continue and thereby led the

Government to choose the entry which prima facie appeared genuine and had the

support of confirmatory evidence, he cannot turn round and say that he has been

prejudiced. He is guilty of acquiescence and the case also attracts the doctrine of

estoppel by negligence. Makaradhwaj Singh v. State of M.P., 1974 SLJ 128 (MP).

(iv) Date of birth as stated in the Matriculation certificate must be accepted to

be correct. Pramatha Nath Chaudhury v. State of West Bengal, 1981 (1) SLR 570:

(1981) 1 SLJ 415.

12. Enquiry into Correctness of Date of Birth After Retirement — The

power of the Government to hold an ordinary enquiry into the correctness of the date of

birth of a Government servant does not come to an end at the retirement of the

Government servant from service. R.S. Kalolinath v. State of Mysore, 1970 SLR 869.

13. Question as to Age of Judge of High Court — The President acting under

Article 217 (3) performs judicial function and he cannot act on the advice of his

Minister. Union of India v. Jyoti Prakash Mitter, (1971) 1 SCWR 355: AIR 1971 SC

1093: 1971(3) SCR 483: 1971(1) SCC 396: (1971) 2 SCJ 501.


Fundamental Rule 56(c)

14. Age of Superannuation of Ministerial Government Servants who

Entered in Service on or before 31.3.1938 — Fundamental Rule 56 (c) —

Government of India letter No. 3/12/68 H.M.T., dated 25th March, 1968 — The only

requirement is that the person concerned should have “entered Government service” on

or before 13.3.1938. It does not say that he should be a ministerial Government servant

on or before that date. Order of retirement quashed. Lala Ram v Union of India, 1969

DLT 622 (Delhi); Jagan Nath Sharma v. Union of India, 1969 SLR 551 (Delhi). Also

see Union of India v. Mool Chand Dasumal Pardesani, (1972) II SCWR 633: AIR 1971

SC 2369: 1972(1) SCR 273: 1971 Lab IC 1390 and Lila Ram Bhatia v. Delhi

Administration, 1972 SLR 468.

Government service would include not only service rendered under the Central

Government and the former Provincial Government but also that rendered under the ex-

princely State. N. S. Vatsraj v. Union of India, 1976 (2) SLR 601.

Fundamental Rule 56(d)

15. Extension of Service or Retention Beyond the Age of Superannuation—

A Government servant may be retained in service after the age of superannuation. The

rule however does not give any right to an employee to continue in service after the age

of superannuation. It is a discretion which Government can exercise in certain cases.

State of Assam v. Premadhar Baruah, (1970) II SCWR 197: AIR 1970 SC 1314:

1971(1) SCR 503: 1970(2) SCC 211: 1970 SLR 529: (1971) 2 SCJ 626; Union of India

v. J.N. Sinha (1971) 1 SCJ 655: AIR 1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458:

1970 SLR 748; B. Narayana Murthy v. State of A.P., (1971) II SCWR 459: AIR 1971

SC 1716: 1971 Supp SCR 741: 1971(2) SCC 425: 1971(2) SLR 888; State of Assam v.

Basanta Kumar Das; (1974) 1 SCJ 170: 1973 SLJ 265: AIR 1973 SC 1252: 1973(3)

SCR 158: 1973(1) SCC 461: 1973(1) SLR 921; S.N. Pallegal v. State of Mysore, 1973

SLJ 283: AIR 1973 SC 671: 1973(3) SCR 199: 1973(4) SCC 158: 1973(1) SLR 1205:

(1974) 1 SCJ 230.

16. Retention in Service for Purpose of Enquiry — Retention of a

Government servant in service after the age of superannuation for the purpose of

enquiry was not proper and the extension of service was illegal. State of West Bengal v.

Nripendra Nath Bagchi, (1966) 2 SCJ 59: (1966) I SCWR 169: AIR 1966 SC 447:

1966(1) SCR 771; S. Subba Rao v. State of Mysore, AIR 1968 Mys 81. If a disciplinary

enquiry against the civil servant cannot be concluded before the date of superannuation

the course open to the Government is to pass an order of suspension and refuse to

permit the public servant to retire and retain him in service till such enquiry is

completed and a final order is passed. State of Punjab v. Khemi Ram, AIR 1970 SC

214: 1970(2) SCR 658: 1969(3) SCC 28: 1969 SLR 833: 1970 Lab IC 271: (1969) II

SCWR 718: (1971) 1 SCJ 263.

Fundamental Rule 56(j)

17. Public Interest — The expression “public interest” in the context of

premature retirement has a well settled meaning. It refers to cases where the interest of

public administration requires the retirement of a Government servant who with the


passage of years has prematurely ceased to possess the standard of efficiency,

competence and utility called for by the Government service to which he belongs. No

stigma or implication of misbehaviour is intended and punishment is not the objective.

Gyan Singh Mann v. High Court of Punjab, AIR 1980 SC 1894: 1981(1) SCR 507:

1980(4) SCC 266: 1980 Lab IC 983: 1980 Lab IC 983: 1980 (3) SLR 18: 1981 (1) SLJ

121; State of Madhya Pradesh v. Indra Sen Jain, AIR 1998 SC 982: 1998(1) SCC 451:

1997(9) JT 230: 1988(1) SLR 67: (1998) 1 SCJ 305.

The exercise of power must be bona fide and promote public interest. When an

order is challenged and its validity depends on its being supported by public interest,

the State must disclose the material so that court may be satisfied that the order is not

undesirable for want of any material to a reasonable man reasonably instructed in the

law, is sufficient to sustain the grounds of “public interest” justifying forced retirement

of the public servant. Judges cannot substitute their judgment for that of the

Administrator but they are not absolved from the minimal review well settled in

administrative law and founded on Constitutional obligations. The whole purpose of the

rules is to weed out the worthless without the punitive extremes covered by Article 311

of the Constitution. It is in public interest to retire a never do well, but to juggle with

confidential reports when a man”s carrier is at stake is a confident trick contrary to

public interest. Moreover, confidential reports are often subjective, impressionistic and

must receive sedulous checking as basis for decision making. The appropriate authority,

not the court, makes the decision, but, even so, a caveat is necessary to avoid misuse.

Baldeo Raj Chadha v. Union of India, 1980 (3) SLR 1: AIR 1981 SC 70: (1981) 1 SCJ

293: 1981 (1) SLJ 188 (SC). With the apathy of state to produce the service records of

the Government servant, the court is entitled to draw the adverse inference that the said

records if produced would be unfavourable to the state. Kaladhan Mukherjee v. State of

West Bengal, 1980 SLJ 47: 1981 (1) SLR 20; R. Krishnaswamy v. Union of India, 1982

(2) SLR 17.

If a Police Officer indulges in corruption, his retirement is always in a public

interest. Jaidev Singh, ASI v. State of Haryana, 2002(2) SLR 361 P&H.

Where within a few months of crossing the efficiency bar the order of

compulsory retirement in public interest was made and there was no evidence to show

that suddenly there was such deterioration in the quality of appellant”s work or integrity

that he deserved to be compulsorily retired, the order was held bad and quashed. Swami

Saran Saxena v. State of U.P., 1979 (2) SLR 781: 1980 SLJ 1 (SC).

Petitioner had been promoted in January 1975. There was nothing on record

produced on behalf of State to indicate that there were any adverse reports about his

conduct or integrity between January 1975 and October 1975. The decision of State

Government in October 1975 to retire him in public interest was held capricious and

arbitrary. N.M. Linge Gowda v. State of Karnataka, 1981 (1) SLJ 133: 1981 (1) SLR 147.

In the face of the promotion of the appellant just a few months earlier and

nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible

to sustain the order of the Government retiring the appellant from service. D.

Ramaswami v. State of Tamil Nadu, 1982 (1) SLJ 194: 1982 (1) SLR 690: 1982 Lab IC

443: AIR 1982 SC 793.


18. Compulsory Retirement in “Public Interest” — The compulsory

retirement of a Government servant in accordance with the provisions relating to his

superannuation or retirement does not amount to a dismissal or removal and therefore it

is not within the vice of Article 311. There is no stigma involved in Compulsory

retirement. Shyam Lal v. State of U.P., AIR 1954 SC 369: 1954 SCJ 493; T.C.

Shivcharan Singh v. State of Mysore, AIR 1965 SC 280; State of U.P. v. H.C. Kaushal,

1971 (2) SLR 621; P. Radhakrishna v. Govt. of A.P., AIR 1977 SC 854: 1977 SLJ 211:

1977 (1) SLR 258. See also Jai Chand v. Union of India, (1985) 3 SLR 559 (Delhi)

(DB); J.D. Shrivastava v. State of M.P. (1984) 1 SLR 342: (1984) 1 SCJ 94; Gurudev

Singh v. State of Punjab, 1997 (1) SLR 197; Raj Kumar Mehta v. State of Haryana,

1997 (1) SLR 65 (P&H): State of Madhya Pradesh v. Indra Sen Jain, AIR 1998 SC

982: 1998(1) SCC 451: 1997(9) JT 230: 1988(1) SLR 67: (1998) 1 SCJ 305.

The premature retirement of a Government servant in public interest casts no

stigma and is not punishment; therefore, Article 311 of Constitution is not attracted.

Baikunthnath Das v. Chief District Medical Officer, Baripada, 1982 (1) SLJ 648

(Orissa): 1981 (3) SLR 459; Kartar Singh v. Punjab State, 1982 (1) SLR 307.

What is “public interest” was explained in the class decision of Supreme Court

in Union of India v. Col. J.N. Sinha, AIR 1971 SC 40: 1971(1) SCR 791: 1970 SLR 748

(SC). It was pointed out that the object of premature retirement of a Government

servant was to weed out the inefficient, corrupt, dishonest employees from the

Government service. The public interest in relation to public administration means that

only honest and efficient persons are to be retained in service while the services of the

dishonest or the corrupt or who are almost dead wood, are to be dispensed with. The

court observed:

“Compulsory retirement involves no civil consequences. The aforementioned

Rule 56(j) is not intended for taking any penal action against the Government

servants. That Rule merely embodies one of the facets of the pleasure doctrine

embodied in Article 310 of the Constitution. Various considerations may weigh

with the appropriate authority while exercising the power conferred under the

Rule. In some cases, the Government may feel that a particular post may be

more usefully held in public interest by an officer more competent than the one

who is holding. It may be that the officer who is holding the post is not

insufficient but the appropriate authority may prefer to have a more efficient

officer. It may further be that in certain key posts public interest may require

that a person of undoubted ability and integrity should be there. There is no

denying the fact that in all organisations and more so in Government

organisations, there is a good deal of dead wood. It is in public interest to chop

off the same. Fundamental Rule 56(j) holds the balance between the rights of

the individual Government servant and the interest of the public. While a

minimum service is guaranteed to the Government servant, the Government is

given power to energise its machinery and make it more efficient by

compulsorily retiring those who in its opinion should not be there in pubic interest.

It is true that a compulsorily retirement is bound to have some adverse effect

on the Government servant who is compulsorily retired but then as the Rule


provides that such retirements can be made only after the officer attains the

prescribed age. Further a compulsorily retired Government servant does not

lose any of the benefits earned by him till the date of his retirement. Three

months” notice is provided so as to enable him to find out other suitable

employment. ……In our opinion, the High Court erred in thinking that the

compulsory retirement involves civil consequences.”

See also State of Gujarat v. Suryakant Chunilal Shah, 1999(6) SLR 324 (SC):

1999(1) SCC 529: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(1) LLN 52: 1999(81) FLR

197: 1999(94) FJR 534: 1999(6) SLR 324; H.C. Gargi v. State of Haryana, 1986(4)

SCC 158: AIR 1987 SC 65: 1986(3) SLR 57 (SC); Gian Singh Man v. High Court of

Punjab & Haryana, 1980(4) SCC 266: AIR 1980 SC 1894; Kailash Chandra Agarwal

v. State of M.P., 1987(3) SCC 513: 1987(4) ATC 209: AIR 1987 SC 1871: 1987(5) 171

(SC); Union of India v. M.E. Reddy, 1980(2) SCC 15: AIR 1980 SC 563: 1979(2) SLR

792 (SC); Baikuntha Nath Das v. Chief Distt. Medical Officer, 1992(2) SCC 299:

1992(21) ATC 649: 1992(2) SLR 2 (SC); Posts & Telegraphs Board v. C.S.N. Murthy,

1992(2) SCC 317: 1992(21) ATC 663: 1992(2) SLR 352 (SC).

19. Compulsory retirement and misuse of power — There were absolutely

no adverse entries in respondent”s confidential record. In the rejoinder filed in Supreme

Court also, nothing averred that the respondent”s service record revealed any adverse

entries. The respondent had successfully crossed the efficiency bar at the age of 50 as

well 55. He was placed under suspension on 22.5.1986 pending disciplinary

proceedings. The State Government had sufficient time to complete the enquiry against

him but the enquiry was not completed within a reasonable time. Even the Review

Committee did not recommend the compulsory retirement of the respondent. The

respondent had only less than two years to retire from service. Held that if the

impugned order is viewed in the light of these facts, it could be said that the order of

compulsory retirement was passed for extraneous reasons. As the authorities did not

wait for the conclusion of the enquiry and decided to dispense with the services of the

respondent merely on the basis of the allegations which had not been proved and in the

absence of any adverse entries in his service record to support the order of compulsory

retirement, it was held that the impugned order was liable to be set aside. State of

Gujarat v. Umedbhai M. Patel, AIR 2001 SC 1109: 2001(3) SCC 314: 2001(3) JT 223:

2001(2) LLJ 1140: 2001(2) SCJ 273.

In K.K. Kandaswamy v. Union of India, AIR 1996 SC 277: 1995(6) SCC 162:

1995(7) JT 80: 1995 Lab IC 2709: 1997(1) LLN 170: 1995(31) ATC 479: 1995(6) SLR

47 (SC), Supreme Court observed that:

“9. While exercising the power under Rule 56(j) of the Fundamental Rules, the

appropriate authority has to weigh several circumstances in arriving at the

conclusion that the employee required to be compulsorily retired in public

interest. The Government is given power to energise to machinery by weeding

out dead wood, inefficient, corrupt and people of doubtful integrity by

compulsorily retiring them from service. When the appropriate authority forms

bona fide opinion that compulsory retirement of the Government employee is in

the public interest. Court would not interfere with the order”.


Therefore the opinion must be based on the material on record otherwise it

would amount to arbitrary or colourable exercise of power. It was also held that the

decision to compulsorily retire an employee can, therefore, be challenged on the ground

that requisite opinion was based on no evidence or had not been formed or the decision

was based on collateral grounds or that it was an arbitrary decision. State of Gujarat v.

Suryakant Chunilal Shah, 1999(1) SCC 529: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(1)

LLN 52: 1999(81) FLR 197: 1999(94) FJR 534: 1999(6) SLR 324.

20. On Overall Assessment of Service Record — It cannot be gainsaid, that

the service record of Government servant, his character roll entries etc. are relevant

factors for deciding whether it is in public interest to retire a Government servant

compulsorily. N.V. Putta v. State of Mysore, AIR 1972 SC 2185: 1973(1) SCR 304:

1972(3) SCC 739: 1972 SLR 525: (1973) 1 SCJ 339; Shikar Chand Jain v. State of

U.P., 1974 SLJ 106. Where the records do demonstrate that the opinion formed is bona

fide and not influenced by any extraneous matters, cannot be said that the authority

ordering compulsory retirement has acted in abuse of the power which vested in him.

M.L. Kalia v. Union of India, 1979 (3) SLR 334. Where there is nothing on record to

support the impugned order, the order amounts to an abuse of power which vested in

the authority concerned. Smt. S.R. Venkataraman v. Union of India, AIR 1979 SC 49:

1979(2) SCR 202: 1979(2) SCC 491: 1979 SCJ 1: 1979 (1) SLR 130; 1978 Lab IC

1641; Brij Behari Lal Aggarwal v. Hon”ble High Court of M.P., 1981 Lab IC 137:

(1981) 2 SCJ 90: AIR 1981 SC 594: 1981(2) SCR 297: 1981(1) SCC 490: 1981 (1) SLJ

412: 1980 (3) SLR 583; D. Ramaswami v. State of Tamil Nadu, AIR 1982 SC 793:

1982(3) SCR 75: 1982(1) SCC 510: 1982 (1) SLJ 194: 1982 (1) SLR 690: 1982 Lab IC 443.

Consideration of censure in the year 1984 and latest entry recording absence

shows no application of mind and therefore, order of compulsory retirement was

quashed. Mahabir Singh v. State of Haryana, 2002(2) SLR 347 P&H.

In order to find out whether any Government servant has outlived his utility

and is to be compulsorily retired in public interest for maintaining an efficient

administration, an objective view of overall performance of that Government servant

has to be taken before deciding, after he has attained the age of 50 years, either to retain

him further in service or to dispense with the services in public interest, by giving him

three months” notice or pay in lieu thereof. State of Gujarat v. Suryakant Chunilal

Shah, 1999(6) SLR 324 (SC): 1999(1) SCC 529: 1999(2) SLJ 28: 1999(1) LLJ 265:

1999(81) FLR 197: 1999(94) FJR 534.

Adverse entry prior to promotion or putting of efficiency bar of picking up of

higher rank is not wiped out and the same has to be taken into consideration otherwise

it will not be a case of examining the entire record. Banshi Lal Nayati v. State of

Rajasthan, 1999(3) SLR 187 Raj.

21. Absence of Words “Public Interest” in Order — (i) The mere absence of

the use of the words “public interest” in the order or the refusal to repeat the very

language of the statutory provision would not per se involve the taint of invalidity.

Krishan Dev Kapoor v. General Manager, Northern Railway, 1974 SLJ 633; 1973 (2)

SLR 149; Mayengham Raja Mohan Singh v. Chief Commissioner, Manipur, AIR 1976

SC 2581: 1976(4) SCC 709: 1977 (1) SLR 234: 1977 SLJ 65: 1976 Lab IC 1713.


(ii) The concept of “public interest” was introduced by sub-rule (j) of Rule 56

of the Fundamental (Sixth Amendment) Rules, 1965. The appellant”s service having

been validly determined by a notice which was issued prior to the date when the

amended rules came into force it was not necessary for the authority to satisfy itself that

it was in “public interest” to retire the appellant compulsorily. B. Venkataswara Rao

Naidu v. Union of India, 1973 SLJ 314: 1973 (1) SLR 676 (SC).

22. Compulsory Retirement Under F.R. 56 (j): No opportunity to show

cause required — (i) Fundamental Rules 56 (j) does not require that any opportunity

should be given to the Government servant to show cause against his compulsory

retirement. Union of India v. Col. J.N. Sinha, (1970) II SCWR 393: 1970 SLR 748: AIR

1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458; Col. J.N. Sinha v. Union of India,

1970 SLR 213 (Delhi) Reversed; P.P. Yajurvedi v. C.L. Handa, AIR 1970 Delhi 211

which followed 1970 SLR 213 (Delhi) no longer good law. Also see R.I.N. Ahooja v.

Union of India, 1973 (1) SLR 15.

(ii) Where compulsory retirement is in accordance with a rule which fixes

reasonable age-limit for such retirement and provides for payment of retirement pension

without loss of benefits already earned no notice to show cause as contemplated under

Article 311 (2) of Constitution is required. M.S. Bheemasenachar v. State of Mysore,

1971 Lab IC 122.

23. Compulsory Retirement under F.R. 56(j), does not Involve Civil Consequences — What is “public interest” was explained in the decision of Supreme

Court in Union of India v. Col. J.N. Sinha, AIR 1971 SC 40: 1971(1) SCR 791: 1970

SLR 748 (SC): 1970(2) SCC 458: (1970) II SCWR 393. It was pointed out that the

object of premature retirement of a Government servant was to weed out the inefficient,

corrupt, dishonest employees from the Government service. The public interest in

relation to public administration means that only honest and efficient persons are to be

retained in service while the services of the dishonest or the corrupt or who are almost

dead wood, are to be dispensed with. The court observed:

“Compulsory retirement involves no civil consequences. The aforementioned Rule

56(j) is not intended for taking any penal action against the Government servants.

That Rule merely embodies one of the facets of the pleasure doctrine embodied in

Article 310 of the Constitution. Various considerations may weigh with the

appropriate authority while exercising the power conferred under the Rule. In some

cases, the Government may feel that a particular post may be more usefully held in

public interest by an officer more competent than the one who is holding. It may be

that the officer who is holding the post is not insufficient but the appropriate

authority may prefer to have a more efficient officer. It may further be that in certain

key posts public interest may require that a person of undoubted ability and integrity

should be there. There is no denying the fact that in all organisations and more so in

Government organisations, there is a good deal of dead wood. It is in public interest

to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of

the individual Government servant and the interest of the public. While a minimum

service is guaranteed to the Government servant, the Government is given power to

energise its machinery and make it more efficient by compulsorily retiring those who


in its opinion should not be there in pubic interest. ……It is true that a compulsorily

retirement is bound to have some adverse effect on the Government servant who is

compulsorily retired but then as the Rule provides that such retirements can be made

only after the officer attains the prescribed age. Further a compulsorily retired

Government servant does not lose any of the benefits earned by him till the date of

his retirement. Three months” notice is provided so as to enable him to find out other

suitable employment. ……In our opinion, the High Court erred in thinking that the

compulsory retirement involves civil consequences.”

State of Gujarat v. Suryakant Chunilal Shah, 1999(6) SLR 324 (SC): 1999(1)

SCC 529: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(1) LLN 52: 1999(81) FLR 197:

1999(94) FJR 534: 1999(6) SLR 324; See also H.C. Gargi v. State of Haryana, 1986(4)

SCC 158: AIR 1987 SC 65: 1986(3) SLR 57 (SC); Gian Singh Man v. High Court of

Punjab & Haryana, 1980(4) SCC 266: AIR 1980 SC 1894; Kailash Chandra Agarwal

v. State of M.P., 1987(3) SCC 513: 1987(4) ATC 209: AIR 1987 SC 1871: 1987(5) 171

(SC); Union of India v. M.E. Reddy, 1980(2) SCC 15: AIR 1980 SC 563: 1979(2) SLR

792 (SC); Baikuntha Nath Das v. Chief Distt. Medical Officer, 1992(2) SCC 299:

1992(21) ATC 649: 1992(2) SLR 2 (SC); Posts & Telegraphs Board v. C.S.N. Murthy,

1992(2) SCC 317: 1992(21) ATC 663: 1992(2) SLR 352 (SC); E.V. Naidu v. Union of

India, AIR 1973 SC 698: 1973(3) SCR 216: 1973(1) SCC 361: 1973(1) SLR 676:

(1971) 1 SCJ 655.

24. Fundamental Rule 56(j), Absolute Right of Authority to Retire — F.R.56(j) says that the appropriate authority has the absolute right to retire a

Government servant if it is of the opinion that it is in the public interest to do so. This

power can be exercised subject to the conditions mentioned in the rule. Union of India

v. Col. J.N. Sinha, (1970) II SCWR 393: (1971) 1 SCJ 655: AIR 1971 SC 40: 1971(1)

SCR 791: 1970(2) SCC 458: 1970 SLR 748; R.L. Butail v. Union of India, (1970) II

SCWR 561: 1970(2) SCC 876; Mayengbam Radha Mohan Singh v. Chief

Commissioner, Manipur, AIR 1976 SC 2581: 1977(1) SCR 1022: 1976(4) SCC 709:

1977 (1) SLR 234: 1977 SLJ 65. The order to retire must be passed only by the

“appropriate authority”. That authority must form the requisite opinion not subjective

satisfaction but objective and bona fide based on relevant material. The requisite

opinion is that the retirement of the victim is in public interest – not personal, political

or other interest but solely governed by the interest of public service. The right to retire

is not absolute, though so worded. Absolute power is anathema under our constitutional

order. “Absolute” merely means wide, not more. Naked and arbitrary exercise of power

is bad in law. Baldeo Raj Chadha v. Union of India, 1980 (3) SLR 1: 1980 Lab IC

1184: AIR 1981 SC 70: 1981(1) SCR 430: 1980(4) SCC 321: 1981 (1) SLJ 188; Union

of India v. K.R.Tahiliani, 1980(2) SCR 1092: AIR 1980 SC 953: 1980(3) SCC 309:

1980 Lab IC 594: 1980(1) SLR 847: 1980 SCC (Lab) 374: ILR (1980) HP 164; R.

Krishnaswamy v. Union of India, 1982 (2) SLR 17.

25. Compulsory Retirement under F.R. 56(j), F.R. 7 is not

Attracted— F.R. 7 provides:—

“No powers may be exercised or delegated under these rules except after

consultation with the Ministry of Finance. It shall be open to that Ministry to


prescribe, by general or special order, cases in which its consent may be

presumed to have been given.”

F.R.7 has no application in the course of a compulsory retirement under

F.R.56(j). S.S. Marwah v. Union of India, 1982 Lab IC 372.

26. Fundamental Rule 56(j) : Validity of — The validity of Fundamental

Rule 56(j) is not open to question. T.C.Shivacharana Singh v. State of Mysore, AIR

1965 SC 280: 1967(2) LLJ 246: 1967(15) FLR 223; Union of India v. Col. J.N. Sinha,

(1970) II SCWR 393: AIR 1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458; R.L.

Butail v. Union of India, (1971) 2 SCR 55: 1970(2) SCC 876: 1970 SLR 926.

The concept of the premature retirement which has found expression in the

Punjab Civil Services (Premature Retirement) Rules, 1965 does not fall within the

scope of Art. 311. Gian Singh Mann v. High Court of Punjab, 1980 (3) SLR 18 (SC):

AIR 1980 SC 1894: 1981(1) SCR 507: 1980(4) SCC 266: 1980 Lab IC 983: 1981 (1)

SLJ 121.

27. Fundamental Rule 56(j)(i) : Application of — Rule 56(j)(i) is meant to

cover only those who are in a post on a regular basis, i.e. in a substantive capacity, and

not on an officiating basis only. K.R. Tahiliani v Union of India, 1978 (1) SLR 815

(Delhi) on appeal. Union of India v. K.R. Tahiliani; 1980(2) SCR 1092: 1980(3) SCC

309: AIR 1980 SC 953: 1980 Lab IC 594: 1980(1) SLR 847: 1980 SCC (Lab) 374: ILR

(1980) HP 164; C.K. Jain v. State of Haryana, 1981 (1) SLR 551.

Sub-clause (i) is applicable only if the employee is in Class I or Class II service

and had entered Government service before attaining the age of 35 years. T.C. Sanghi v.

Union of India, 1982 (1) SLJ 21.

28. Compulsory Retirement under F.R. 56(j) — Analysis of Case Law — (i)

The rule is not intended for taking any penal action:

(ii) It involves no civil consequences.

(iii) It does not cast any stigma.

(iv) It does not involve any penal action.

(v) The rule confers on the appropriate authority an absolute right to retire a

Government servant on his attaining the age of 50 years in case of officers of

Group A and Group B and 55 years in any other case if such authority is of the

opinion that it is in public interest to do so.

(vi) The presumption is that order has been passed in public interest.

(vii) The decision is administrative.

(viii) Courts cannot sit as a court of appeal on facts over the decision of

Government or the appointing authority unless the decision is capricious or arbitrary or

based on collateral grounds or is made on extraneous considerations. See Union of India

v Col. J.N.Sinha, (1974) II SCWR 393: 1970 SLR 748: AIR 1971 SC 40: 1971(1) SCR

791: 1970(2) SCC 458: R.L. Butail v. Union of India, (1970) II SCWR 561: (1970) 2

SCC 876: 1970 SLR 926; State of U.P. v. S. M. Banerji, 1974 ALJ 238: 1974 (2) SLR


499; Shikar Chand Jain v. State of U.P., 1974 SLJ 106; Gian Singh Mann v. High Court

of Punjab, AIR 1980 SC 1894: 1981(1) SCR 507: 1980(4) SCC 266: 1980 (3) SLR 18;

Baldeo Raj Chadha v. Union of India, (1980) 3 SLR 1: (1981) 1 SLJ 188 (SC);

Baikunthanath Das v. Chief District Medical Officer, (1982) 1 SLJ 648 (Orissa): 1981

(3) SLR 459.

29. Intention of Holding Enquiry, then Deciding to Retire — (i) Appointing

authority at first deciding to proceed by way of disciplinary action against a public

servant but subsequently deciding to compulsorily retire him in accordance with the

rules. There is no legal bar in doing so. Basistha Narain v. Commissioner of Income

Tax, AIR 1968 Patna 113; Jagdish Mittar v. Union of India, AIR 1964 SC 449: 1964(1)

LLJ 418.

An order of compulsory retirement passed during the pendency of disciplinary

proceedings cannot invariably be held to be penal in every case. It is a matter which has

to be decided on the basis of the material on which such order is passed. State of Uttar

Pradesh v. Abhai Kishore Masta, 1995(1) SCC 336: 1995(1) SCJ 199: 1995(1) SLR 16:

1995(29) ATC 116: 1995(2) SLJ 1: 1995 Lab IC 1401: 1995(70) FLR 789.

In another case the High Court on its administrative side decided to keep

disciplinary proceedings against the judicial officer pending for the purpose of

imposing the cut on his retiral benefits. It was held that the conclusion is obvious that

action of the High Court in retiring judicial officer was based on the allegation of

misconduct, which was subject matter of the inquiry before a judge of the High Court

and which appears to be the basis for recording of adverse remarks by the High Court in

the ACR of the officer for the year 1991-92. Held that the impugned order of

compulsorily retiring judicial officer though innocuously worded was in fact an order of

his removal from service and cannot be sustained. High Court of Punjab and Haryana

v. Ishwar Chand Jain, AIR 1999 SC 1677: 1999(4) SCC 579: 1999(2) SLR 531:

1999(2) KLT 34(SN): 1999 Lab IC 1823: 1999(3) LLN 28: 1999(3) SLJ 230.

(ii) Dropping Enquiry in Progress and Ordering Compulsory Retirement—

Even though the departmental enquiry has commenced, the Government has the power

to drop the proceedings and order compulsory retirement. State of U.P. v. Man Bahal

Lal Srivastava, 1975 (2) SLR 161: 1975 Lab IC 503.

The factum of pendency of an enquiry or the continuance of the employee

under suspension when the order of his retirement is passed, is not decisive of the

question that needs to be determined. What is decisive is whether the order is by way of

punishment. Merely because the petitioner was under suspension without anything more

at the time the impugned notice of compulsory retirement was served on him, the same

would not amount to an order of punishment. J.M. Sharma v. State of Haryana, 1981

(1) SLR 554.

Departmental proceedings were started against the petitioner in 1959. Although

the dismissal order was set aside in 1966, fresh proceedings were started against him.

The decision to retire him compulsorily was taken as a short cut. Order quashed. O.P.

Gupta v. Union of India, 1981 (3) SLR 778.


(iii) Charges Dropped : Compulsory Retirement not Based on Any

Material, Bad — Petitioner was subjected to certain charges but they were dropped

after a thorough investigation. However, there is one adverse entry about his efficiency.

Held, conclusion of compulsory retirement not based on any material. A Sruvli Babu v.

State of Tamil Nadu, 1979 SLJ 527: 1979 (2) SLR 282.

(iv) Charges Dropped — Promoted — Shortly Thereafter Compulsorily

Retired — Order Quashed — The appellant started at the lowest rung as a Lower

Division Clerk and getting one promotion after the other was posted as Member of the

Sales Tax Appellate Tribunal when he was prematurely retired in September 1975. An

adverse entry had been made against him in 1969. He was served with a charge sheet

but the charges were dropped in 1974. In May 1975 he was promoted and posted as

Member of the Tribunal but prematurely retired in September 1975. Nothing even

mildly suggestive of ineptitude or inefficiency after promotion. Order of retirement

quashed. D.Ramaswami v. State of T.N., AIR 1982 SC 793: 1982(3) SCR 75: 1982(1)

SCC 510: 1982(1) SLJ 194: 1982(1) SLR 690: 1982 Lab IC 443.

30. Compulsory retirement on account of Involvement in criminal case — The involvement of a person in a criminal case does not mean that he is guilty. He is

still to be tried in a court of law and the truth has to be found out ultimately by the

court where the prosecution is ultimately conducted. But before that stage is reached, it

would be highly improper to deprive a person of his livelihood merely on the basis of

his involvement. However mere involvement in a criminal case would constitute

relevant material for compulsory retirement or not would depend upon the

circumstances of each case and the nature of offence allegedly committed by the

employee. State of Gujarat v. Suryakant Chunilal Shah, 1999(1) SCC 529: 1998(5)

SLR 746: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(1) LLN 52: 1999(81) FLR 197:

1999(94) FJR 534

31. Superannuation According to New Rules, No Penalty — On the age of

superannuation being reduced from 58 years to 55 years; if the services are terminated

or compulsory retirement is made, it cannot be said a removal or a penalty so as to

attract Article 311. Ramavtar Pandey v. State of U.P., AIR 1962 All 318; Bishan

Narain Misra v. State of U.P., AIR 1965 SC 1567: 1965(1) SCR 693: 1966(1) LLJ 45:

(1965) 1 SCWR 693. See also, C. Sankara Narayanan v. State of Kerala, (1971) II

SCWR 50: AIR 1971 SC 1997: 1971 Supp SCR 654: 1971(2) SCC 361: 1971 Lab IC 1178.

32. Competency of Authority to Retire — If no rule authorised the

Government to compulsorily retire an employee before the date of superannuation and

before he had put in 25 years of service, the order violates Article 311. Mohammed

Mominuddin v. Government of A.P., (1968) II SCWR 773; Moti Ram Deka v. G.M.,

N.E.F. Rly., (1964) 5 SCR 683: AIR 1964 SC 600: 1964(5) SCR 683: 1964(2) LLJ 467;

Somnath Misra v. Union of India, AIR 1969 Orissa 37.

The order of compulsory retirement is to be passed only by the appropriate

authority after forming requisite opinion not subjective satisfaction, but objective and

bona fide and based on relevant material. The requisite opinion is to be in public

interest not personal, political or other collateral consideration but solely in public

interest. The bona fide opinion cannot be challenged before courts. If an order of


compulsory retirement is passed without application of mind and without forming the

requisite opinion, such an order can be annulled by the Court. Baikunthanath Das v.

Chief District Medical Officer, Baripada, 1982 (1) SLJ 648 (Orissa): 1981 (3) SLR 459;

Bhola Ram v. Lt. Governor, Delhi, 1983 Lab IC 57.

33. Minimum period of service — If a rule provides for compulsory

retirement at any time, without providing for a minimum period of service after which

only compulsory retirement can be ordered, that rule itself must be held to be void for

contravention of Article 311(2) of the Constitution, because such compulsory

retirement, in the case of a permanent government servant, amounts to removal; that the

rule under which the order has been made is unconstitutional and invalid (i) when the

rule does not fix any age of superannuation but enable the government to retire a

government servant at any time, without payment of full pension, and (ii) when the age

of superannuation has not been reasonably fixed and is unnecessarily short. Durgadas

Purkyastha v. Union of India, AIR 2002 SC 2639: 2002(6) SCC 252: 2002(5) JT 210:

2002(5) SLR 229 (SC): 2002 AIRSCW 2966: 2002(48) AllLR 493: 2002 SCC (L&S) 859.

34. Compulsory Retirement Before Age of Superannuation — (i) Rules for

— Government can compulsorily retire an employee even before he has attained the age

of superannuation. Pritam Singh Brar v. State of Punjab, AIR 1968 Punjab 189(FB);

Kartar Singh v. Punjab State, 1982 (1) SLR 307.

Fundamental Rules 56(j)(i) is meant to cover only those who are in a post on a

regular basis, i.e., in a substantive capacity, and not on an officiating basis. Union of

India v. K.R.Tahiliani, 1980(2) SCR 1092: 1980(3) SCC 309: AIR 1980 SC 953: 1980

Lab IC 594: 1980(1) SLR 847: 1980 SCC (Lab) 374: ILR (1980) HP 164 : 1980 (1) SLR 847

(ii) On Completing Reasonably Long Period of Qualifying Service — If a

permanent public servant is compulsorily retired under the rules which prescribe the

normal age of superannuation and provide for a reasonably long period of qualified

service after which alone compulsory retirement can be ordered, that may not amount to

dismissal or removal. Such a rule is valid. Satish Chand Anand v. Union of India, AIR

1953 SC 250; T.C. Shivacharana Singh v. State of Mysore, AIR 1965 SC 280: 1967(2)

LLJ 246: 1967(15) FLR 224; Takhatary Shivdatrai v. State of Gujarat, 1969 (2) SCC

120. See also, Vithalrao Ramachandra Ghorpade v. State of Maharashtra, 1973 (1)

SLR 255; Union of India v. M.E.Reddy, 1980(1) SCR 736: 1980(2) SCC 15: AIR 1980

SC 563: 1980 Lab IC 221: 1979(2) SLR 792: 1980 SCC (Lab) 179.

(iii) On Completing Unreasonably Short Period of Service — (a) A rule

conferring an absolute right to retire a Government servant after he had completed ten

years of qualifying service though providing that such power shall not be exercised

except when it is in public interest, was struck down as contravening Art. 311(2).

Gurdev Singh Sidhu v. Punjab State, (1964) 7 SCR 587: AIR 1964 SC 1585: 1964 Crl

LJ 481; R.L. Butail v. Union of India (1970) II SCWR 561: 1970 SLR 926.

(b) A rule which permits a Government to ask an officer to retire after an

unreasonably short period of service much before the normal age of superannuation

would be hit by Art. 311. Butahari Jena v. State of Orissa, (1971) 1 SCWR 643: AIR

1971 SC 1516: 1971 Supp SCR 352: 1971(2) SCC 232: 1971 Lab IC 948.


(iv) For Being Unfit — Where the authority chooses to exercise its powers to

compulsorily retire the Government servant by an order in which it brands him “unfit”

to be retained in service on account of his being dishonest, inefficient, or of doubtful

integrity, as a punitive measure, Art. 311(2) of the Constitution will be attracted with

full force and the order of retirement will, in substance, be construed as an order of

“dismissal” or “removal” from service. S. Mangal Singh v. Punjab State, 1968 Cur LJ 13.

(v) For administrative Reasons — Order for retirement on administrative

reasons does not amount to dismissal or removal from service within the meaning of

Art. 311(2) of the Constitution. Dalip Singh v. State of Punjab, (1961) 1 SCR 88: AIR

1960 SC 1305: 1961(2) SCJ 58.

(vi) For Physical Incapacity — In the absence of a service rule, the

compulsory retirement of a Government servant on the ground of physical incapacity is

a punishment as it visits him with penal consequences in that it entails in a premature

end to his employment. Motiram v. N.E.Frontier Railway, AIR 1964 SC 600: 1964(5)

SCR 683: 1964(2) LLJ 467; Gurdev Singh Sidhu v. State of Punjab, AIR 1964 SC 1585;

T.S. Mankad v. State of Gujarat, AIR 1970 SC 143: 1970(1) SCR 244: 1969(2) SCC

120: 1969 SLR 572; S.P. Shrivastava v. State of M.P., 1970 SLR 700: AIR 1971 MP 20.

Petitioner was unable to perform the duties properly because of his bad eye

sight. As such it cannot be said that the action of the respondents was, in any way, mala

fide. T.C. Sanghi v. Union of India, 1982(1) SLJ 21.

(vii) For Unsatisfactory Record of Service — (a) Retirement ordered on the

ground that the record of service was found to be unsatisfactory. No enquiry made as

contemplated by Art. 311(2). Order attaches stigma and is ultra vires. Jagdish Mitter v.

Union of India, AIR 1964 SC 449: 1964(1) LLJ 418; Balbir Singh v. State of Punjab,

AIR 1970 Punjab 459; Baldev Raj Chadha v. Union of India, AIR 1981 SC 70: 1981(1)

SCR 430: 1980(4) SCC 321: 1981 (1) SLJ 188: 1980 Lab IC 1184: 1980 (3) SLR 1.

Whatever value the confidential reports of earlier years may possess, those

pertaining to later years are not only of direct relevance but also of utmost importance.

The uncommunicated adverse entries are not to be considered while taking decision.

Gurdial Singh Fijji v. State of Punjab, AIR 1979 SC 1622: 1979(3) SCR 518: 1979(2)

SCC 368: 1979 Lab IC 1186: 1979 (1) SLR 804; Union of India v. M.E. Reddy, AIR

1980 SC 563: 1980(1) SCR 736: 1980(2) SCC 15: 1980 Lab IC 221: 1979(2) SLR 792;

Brij Bihari Lal v. Hon”ble High Court of M.P., AIR 1981 SC 594: 1981(2) SCR 297:

1981(1) SCC 490: 1981 Lab IC 137: 1980 (3) SLR 583: (1981) 2 SCJ 90: 1981 (1) SLJ 412.

(b) The service record of Government servant, his character roll entries etc. are

relevant factors for deciding whether it is in public interest to retire a Government

servant compulsorily. N.V. Putta v. State of Mysore, AIR 1972 SC 2185: 1973(1) SCR

304: 1972(3) SCC 739: 1972 SLR 525: 1972 Lab IC 942; Shikar Chand Jain v. State of

U.P., 1974 SLJ 106; M.L. Kalia v. Union of India, 1979 (3) SLR 334; Smt. S.R.

Venkataraman v. Union of India, AIR 1979 SC 49: 1979(2) SCR 202: 1979(2) SCC

491: 1978 Lab IC 1641: 1979 SLJ 1: 1979 (1) SLR 130; Brij Bihari Lal Aggarwal v.

Hon”ble High Court of M.P., AIR 1981 SC 594: 1981(2) SCR 297: 1981(1) SCC 490:

1981 Lab IC 137: 1980 (3) SLR 583: (1981) 2 SCJ 90: 1981 (1) SLJ 412.


There were entries regarding inefficiency as a judicial officer, and touching his

integrity. Right from the beginning of his career, the petitioner was trusted as an

average officer and for several years it was observed that he had tendency to utilise the

official power for personal gains and his general reputation was not even good. His

integrity was also stated to be doubtful. It was held that the decision to retire the officer

prematurely cannot be faulted. Bhikuri Charan Nanda v. State of Orissa, 1999(1) SLR

394 Ori (DB).

(viii) Saying Employee Outlived his Utility — Compulsory retirement saying

that the employee had outlived his utility. No enquiry held as contemplated by Art.

311(2), order attaches stigma and is ultra vires. State of U.P. v. Madan Mohan Nagar,

AIR 1967 SC 1260: 1967(2) SCR 333: 1967 SLR 147: (1967) 1 SCWR 521.

(ix) Without Assigning Reason — There is no violation of Art. 311(2) if the

Government asks any Government servant to retire in accordance with rules without

assigning any reason. Batahari Jena v. State of Orissa, AIR 1971 SC 1516: 1971 Supp

SCR 352: 1971(2) SCC 232: 1971 Lab IC 948: (1971) I SCWR 643; State of Assam v.

Premadhar Baruah, (1970) II SCWR 197: AIR 1970 SC 1314: 1971(1) SCR 503:

1970(2) SCC 211: 1970 Lab IC 1067: 1970 SLR 529: (1971) 2 SCJ 626; Tarlok Singh

v. State of Punjab, (1974) 1 SLR 728: 1974 SLJ 438; Tara Singh v. State of Rajasthan,

AIR 1975 SC 1487: 1975(3) SCR 1002: 1975(4) SCC 86: 1975 SLJ 619: 1975 (1) SLR

777: 1975 Lab IC 1046.

35. Compulsory Retirement with Stigma — (i) If a Government servant is

compulsorily retired from service with stigma, it amounts to punishment. Jogendra

Nath Trivedi v. State of Bihar, 1973 (1) SLR 1030; O.P. Kapoor v. State of Punjab,

1981 (1) SLR 577.

(ii) Where the impugned order of compulsory retirement stated that the

petitioner has accumulated a number of punishments and his general record of service

has been unsatisfactory and he has ceased to be an efficient and useful member of the

police force, held, these expressions definitely cast a stigma on the petitioner and the

order in question would amount to a punishment and his removal from service so as to

attract Art. 311 of the Constitution. P. Karuppiah v. Inspector General of Police, 1982

Lab IC 1258.

(iii) When an order of compulsory retirement casts an aspersion or attaches a

stigma to the officer it amounts to removal and such a case attracts the provisions of

Art. 311(2) of Constitution. State of U.P. v. Madan Mohan Nagar, AIR 1967 SC 1260:

1967(2) SCR 333: 1967 SLR 147. See also I.N. Saksena v. State of M.P., AIR 1967 SC

1964: (1967)1 SCWR 665 : Allahabad Bank Officers Association v. Allahabad Bank,

AIR 1996 SC 2030: 1996(4) SCC 504: 1996(5) JT 275: 1996(4) AD(Delhi) 455: 1996

SCC (L&S) 1037: 1996(2) Lab IC 1730: (1996) 4 SLR 22 (SC).

36. Compulsory Retirement : Order with or without Stigma — Where there

are no express words in the order itself which would throw any stigma, the court cannot

delve into secretariat files to discover whether some kind of stigma can be inferred on

such research. I.N.Saksena v. State of M.P., AIR 1967 SC 1264: 1967(2) SCR 496:

1967 SLR 203: (1967) I SCWR 665; Balbir Singh v. State of Punjab, AIR 1970 Punjab


459; State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1977(1) SCR 462:

1976(4) SCC 52: 1976 Lab IC 1647: 1976 SLJ 583: 1976 (2) SLR 859.

The petitioner was a competent officer but was lacking in dealing with his

subordinates. He was transferred in the exigencies of service. Petitioner took up leave

and thereafter did not join duties. The charges against him were that he did not report

for duty at the new place of posting, overstayed leave without permission and that he

deliberately disobeyed the order of transfer. He was compulsorily retired. Held, under

the circumstances no stigma in the sense in which the word is ordinarily understood

attached to the petitioner because the order of compulsory retirement was passed

against him. Petition dismissed. T.D. Subramaniam v. Union of India, AIR 1982 SC

776: 1981(4) SCC 150: 1982 Lab IC 442: 1982 (2) SLJ 20: (1981) 1 SCJ 197.

Where the charge against the delinquent (a Postal Assistant) was of wrong

release of a Savings Bank Account in violation of the rules, compulsory retirement is

too harsh. Stoppage of increments (3 years), would suffice. Ram Singh v. Union of

India, (1988) 6 SLR 218 (CAT Chandigarh).

37. Compulsory Retirement : Application of Principle of Natural Justice — Compulsory retirement is not a punishment and does not involve the servant”s being

deprived of any property. The principle of natural justice is that a person should not be

punished or deprived of his property without being heard. It does not apply to

compulsory retirement any more than to retirement on reaching the age of

superannuation or discharge on completing the term of appointment. Abdur Ahmed v.

Inspector General of Police, U.P., AIR 1965 All 142; Abdur Rahim Ahmed v. State of

Mysore, AIR 1969 Mysore 248, M.S. Bheemasenachar v. State of Mysore, 1971 Lab IC

122; Vithalrao Ramchandra Ghorepade v. State of Maharashtra, 1973 (1) SLR 255.

38. Compulsory Retirement : Speaking Order not Required nor Opportunity of being Heard — When the rules fix both, an age of superannuation and

an age of compulsory retirement and the services are terminated between these two

points of time, the compulsory retirement does not amount to dismissal or removal. No

punitive action is contemplated when the civil servant is relieved under the rule. When

the services are so terminated no stigma is cast. Neither any opportunity to the civil

servant of being heard is necessary nor order of premature retirement must be a

speaking one giving reasons. R.I.N. Ahooja v. Union of India, 1973 (1) SLR 15;

Sahadev Patnaik v. State of Orissa, 1974 (2) SLR 778.

39. Compulsory Retirement without giving Reasonable Opportunity to

Show Cause — A Government servant who has to continue in service till he attained

the age of 58 years, if he is retired earlier under F.R. 56 (j) without giving him a

reasonable opportunity to show cause, there is no violation of the principles of natural

justice. Punjab State v. Mohan Singh Mahli, AIR 1970 Punjab 419; State of Assam v.

Premadhar Baruah, (1970) II SCWR 197: AIR 1970 SC 1314: 1971(1) SCR 503:

1970(2) 211: 1970 SLR 529; Union of India v. Col. J.N. Sinha, (1970) II SCWR 393:

1970 SLR 748: AIR 1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458; B. Venkateshwra

Rao Naidu v. Union of India, 1973 (1) SLR 676: 1973 SLJ 341.


40. Compulsory Retirement with Reduction of Pension — In an Allahabad

case the decision to retire the petitioner compulsorily and to initiate action for reducing

his pension were interlinked. Such a composite decision amounts to removal. No doubt

employees retirement in itself may not carry stigma. But if it is coupled with reduction

of pension it cannot be called a “ clean order of retirement”. Mahesh Chand Jindal v.

State of U.P., (1983) 2 SLR 382, 383, 384 para 7 (DB) (All).

41. Compulsory Retirement and Past Record — Compulsory retirement

based only on particular instance (of alleged disobedience of notice called upon the

petitioner to join duty) and without taking into account the entire record of the

petitioner (which had been consistently good) is illegal. Y.G. Raju v. Railway Board,

(1983) 1 SLR 686: (1983) 1 SLJ 45 (AP) (Reviews Case Law).

42. Victimisation — (i) Compulsory retirement by way of victimisation of

employee concerned is illegal.

(ii) Power to retire in the public interest can be exercised only by appointing

authority under Railways Establishment Code, Rule 2046 (b). Appointing authority

must exercise its mind regarding the requirement of “public interest”. Orders of

compulsory retirement passed on the direction of the Railway Board and senior

authorities were held to be illegal. Y.G. Raju v. Railway Board, (1983) 1 SLR 686:

(1983) 1 SLJ 45 (AP).

43. Compulsory Retirement on Integration of State — Appellant in

Saurashtra Service was to retire on completing 55 years of age under Saurashtra

Covenanting State Services Superannuation Age Rules. On States reorganisation

Saurashtra integrated into State of Bombay. By applying Bombay Civil Service Rules

he could be retired at the age of 50 years. Order retiring him at the age of 50 years set

aside. Appellant to remain in service until he attained the age of 55 years. Takhatary

Shivadatrai Mankad v. State of Gujarat, 1969 SLR 572: AIR 1970 SC 143: 1971(2)

SCR 28: 1970(2) SCC 761: 1971 Lab IC 14: 1971(41) Comp Cas 14.

Order to retire a Government Servant prematurely can be made only by the

“appropriate authority”. Such authority cannot be an authority inferior to the authority

which actually appointed the particular officer. Gafoor Mia Kansal v. Director, DMRL,

(Hyderabad), (1988) 4 SLR 445, 466, 469, 470 (CAT Hyderabad) (FB) [The decision is

on the identical provision in the Railways Servants (Discipline and Appeal) Rules, 1963

Rule 2(1) (a).]

Delegation of the power of appointment; under Rule 9(1) proviso, C.C.S. Rules

does not necessarily deprive the disciplinary authority specified in the main part of the

rule from exercising the delegated power of appointment in any case or class of cases.

(following Godavari S.Parulikar v. State of Maharashtra, (1966) 3 SCR 314; Scientific

Adviser to the Ministry of Defence v. S.Daniel, (1990) 2 SLR 724, 738, para 12 (SC):

1990(2) SCR 440: 1990 Supp SCC 374: 1990(2) JT 544: 1990(2) ATR 134: 1991(15)

ATC 799: 1991(3) SLJ 29.

44. Compulsory retirement and integrity — Efficiency is a bundle of sticks

of personal assets, thickest of which is the stick of “integrity”. If this is missing, the

whole bundle would disperse. A Government servant has, therefore, to keep his belt


tight. State of Gujarat v. Suryakant Chunilal Shah, 1999(6) SLR 324 (SC): 1999(1)

SCC 529: 1998(8) JT 326: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(81) FLR 197:

1999(94) FJR 534.

Integrity of a government employee is foremost consideration in public service.

If a conduct of a government employee becomes unbecoming to the public interest or

obstruct the efficiency in public services, the government has an absolute right to

compulsorily retire such an employee in public interest. The government”s right to

compulsorily retire an employee is a method to ensure efficiency in public service and

while doing so the government is entitled under Fundamental Rule 56 to take into

account the entire service record, character roll or confidential report with emphasis on

the later entries in the character roll of an employee. In fact, entire service record,

character roll or confidential report furnishes the materials to screening committee or

the state government, as the case may be, to find out whether a government servant has

outlived his utility in service. It is on consideration of totality of the materials with

emphasis on the later entries in the character roll, the government is expected to form

its opinion whether an employee is to be compulsorily retired or not. State of U.P. v.

Vijay Kumar Jain, 2002(3) SCC 641: 2002(3) JT 76: 2002(3) SLR 363 (SC).

Want of any material is almost equivalent to the next situation that from the

available materials no reasonable man would reach such a conclusion. While evaluating

the materials the authority should not altogether ignore the reputation in which the

officer was held till recently. The maxim “Nemo Firut Repente Turpissimus” (no one

becomes dishonest all on a sudden) is not unexceptional but still it is salutary guideline

to judge human conduct, particularly in the field of Administrative Law. The authorities

should not keep the eyes totally closed towards the overall estimation in which the

delinquent officer was held in the recent past by those who were supervising him

earlier. To dunk an officer into the puddle of “doubtful integrity” it is not enough that

the doubt fringes on a mere hunch. That doubt should be of such a nature as would

reasonably and consciously be entertainable by a reasonable man on the given material.

Mere possibility is hardly sufficient to assume that it would have happened. There must

be preponderance of probability for the reasonable man to entertain doubt regarding

that possibility. Only then there is justification to ram an officer with the label

“doubtful integrity”. Zunjarrao Bhikaji Nagarkar v. Union of India, AIR 1999 SC

2881: 1999(7) SCC 409: 1999(5) JT 366: 1999(112) ELT 772: 1999(7) SLT 66:

1999(94) ECR 29: 2000(6) SLR 276 (SC).

45. Compulsory retirement and judicial review — In S.R. Venkataraman v.

Union of India, 1979(2) SCC 491: 1979(1) SLR 130 (SC), Supreme Court held the

order of compulsory retirement as a gross abuse of power as there was nothing on the

record to justify and support the order.

In Baldev Raj Chadha v. Union of India, 1980(4) SCC 321: 1980(3) SLR 1

(SC), it was held that although the purpose of FR 56 was to weed out worthless

employee without punitive extreme, if under the guise of “public interest”, an order of

premature retirement is made for any other purpose, it would be the surest menace to

public interest and the order must fail for unreasonableness, arbitrariness and

“disguised dismissal”.


In M.S. Bindra v. Union of India, AIR 1998 SC 3058:1998(7) SCC 310:

1998(3) SLR 358 SC: 1998(78) ECR 502 and it was laid down “Judicial scrutiny of any

order imposing premature compulsory retirement is permissible if the order is either

arbitrary or mala fide or if it is based on no evidence. The observation that principles of

natural justice have no place in the context of compulsory retirement does not mean that

if the version of the delinquent officer is necessary to reach the correct conclusion the

same can be obviated on the assumption that other materials alone need be looked into.”

It was further observed with reference to the facts of said case “While viewing

this case from the next angle for judicial scrutiny i.e. want of evidence or material to

reach such a conclusion, we may add that want of any material is almost equivalent to

the next situation that from the available materials no reasonable man would reach such

a conclusion.”

46. Appropriate Authority to Order Compulsory Retirement — Under note

1 to F.R. 56, the authority entitled to make substantive appointment is the appropriate

authority to retire Government servants under the said rules. No doubt, ordinarily the

appointing authority is also the dismissing authority but the position may be different

where retirement alone is ordered. There, the specific provision in the Note to F.R. must

hold good and Art. 311 is not violated either. Nor is there any discrimination because

retirement is a category different from the punishment covered by Art. 311. The Note

says that he who empowered to appoint on a given date is also the appropriate authority

to retire compulsorily on that date. The petitioner was appointed in 1961 by

Comptroller and Auditor General. By a notification in 1972 the A.G. had been clothed

with the power to make substantive appointment of Accounts Officers like the

petitioner. Hence the retirement of the petitioner by A.G. cannot be nullified for want of

competence as on the date order of retirement was passed, A.G. was appropriate

authority to order retirement. Baldev Raj Chadha v. Union of India, 1980 (3) SLR 1:

1980 Lab IC 1184: 1981 (1) SLJ 188: AIR 1981 SC 70: 1981(1) SCR 430: 1980(4) SCC

321. Where the appointment was made by the Comptroller and Auditor General and the

order of retirement was made by the Director of Commercial Audit, the order was held

contrary to law. Dharam Dev Mehta v. Union of India, AIR 1980 SC 557: 1980(3) SCC

25: 1980 Lab IC 380: 1980 (1) SLR 414.

On the recommendation of High Court the Governor/Government is to pass the

ultimate order of compulsory retirement of Judicial Officer/Munsif. Gian Singh Mann

v. High Court of Punjab, 1980 (3) SLR 18 (SC); 1981 (1) SLJ 121: AIR 1980 SC 1894:

1981(1) SCR 507: 1980(4) SCC 266: 1980 Lab IC 983; Rash Behari Rajguru v. State of

Orissa, 1981 (3) SLR 78.

47. Appointing Authority cannot Delegate its Power to Issue Notice to a Subordinate — (i) The power to retire a civil servant on three Months notice rests with

appointing authority which he cannot delegate to subordinate. Balbir Singh v. State of

Punjab, AIR 1970 Punjab 459.

(ii) Notice issued by subordinate with the approval and under the authority of

appropriate authority was held valid by the Supreme Court in Krishna Kumar v. S.P.

Saksena, 1973 (1) SLR 665: 1973 SLJ 862.


48. Compulsory Retirement by Three Month”s Notice or Salary in Lieu of

Notice — Government can retire an employee on or after he attains the age of 55 years

giving him three month”s notice or salary and allowances in lieu of three month”s

notice. Punjab State v. Mohan Singh Mahli, AIR 1970 Punjab 419 (FB); Pritam Singh

Brar v. State of Punjab, ILR (1967) 2 P&H 448(FB); Dev Dutt Gupta v. State of

Haryana, 1973 (1) SLR 30; H.M. Abdul Salam v. State of Mysore, 1974 SLJ 267;

Mohan Singh Mahli v. State of Punjab, 1976 Lab IC 782: 1976 (2) SLR 12 (SC);

Kanhaiya Lal K. v. Union of India, 1982 (2) SLR 84 (a case under Railway

Establishment Code).

In S.N. Jog v. State of M.P., 1981 (2) SLR 352, in view of the provisions

contained in the proviso to F.R.56(3) as applicable to M.P., it was held that there is no

requirement of simultaneous payment or payment soon thereafter to validate the order

of retirement which may operate forthwith. The proviso only say that the retirement

may be forthwith and its result then is to entitle the Government servant to claim a sum

equivalent to the amount of his pay plus allowances for the period of notice. A similar

proviso was construed by the Supreme Court in Raj Kumar v. Union of India, AIR 1975

SC 1116: 1975(3) SCR 963: 1975(4) SCC 13: 1975 SLJ 615: 1975 (1) SLR 774: 1975

Lab IC 669, and it was held that it was not obligatory to pay the Government servant

the salary for the notice period simultaneously but the Government servant was only

entitled to claim the sum.

In F.R. 56 applicable to Central Civil Services there is no such provision as in

F.R. 56(3) as applicable to employees in M.P. or as Rule 5 of C.C.S. (Temporary

Service) Rules, 1965. Three months pay and allowances in lieu of notice must therefore

be paid simultaneously with the notice.

49. Notice pay or notice period — Validity of an order of compulsory

retirement does not depend to prior full payment of three months” salary as a

prerequisite. The only right of the government servant under such an order is to get the

amount of three months” pay and allowance in lieu of such notice. State of Orissa v.

Balakrushna Satpathy, 1995 Supp(4) SCC 511: 1995 SCC (L&S) 267: 1995(29) ATC

157; State of A.P. v. T.K. Seshadri, 2001(7) SLR 28 (SC).

50. Notice to Retire Before Age of 58 Years — A valid notice issued to a civil

servant requiring him to retire on or after attaining the age of 55 years in accordance

with the Civil Service Rules does not amount to punishment nor attracts the provisions

of Article 311(2) or the Punishment and Appeal Rules. Notice cannot be held invalid

merely because it required the civil servant to retire before attaining the age of 58

years. Tarlok Singh v. State of Punjab, 1974 (1) SLR 728: 1974 SLJ 438.

51. Notice, Date from Which Takes Effect and Period of — The notice must

be in writing and it should be of not less than three months. Such a notice takes effect

not from the date on which it is prepared by the Appointing Authority but from the date

on which it is actually served upon the Government servant. A Notice for a shorter

period would not be a notice in accordance with the provisions of the Rule. A notice for

a shorter period cannot be extended retrospectively by a subsequent letter. M.S.

Subramaniam v. B.S.D. Baliga, 1974(1) SLR 251; Also, see Poonam Chand Joshi v.

Union of India, AIR 1971 Rajasthan 12.


52. Order of Compulsory Retirement is not one for Dismissal or Removal

unless it Suffers from Any Vice — The implication and effect of orders of compulsory

retirement came up for consideration before Supreme Court from time to time. From the

decisions following propositions can be extracted:—

First, in ascertaining whether the order of compulsory retirement is one of

punishment, it has to be ascertained whether in the order of compulsory retirement,

there was any element of charge or stigma or imputation or any implication of

misbehaviour or incapacity against the officer concerned. Secondly, the order for

compulsory retirement will be indicative of punishment or penalty if the order will

involve loss of benefits already earned. Thirdly, an order for compulsory retirement on

the completion of 35 years of service or an order of compulsory retirement made in the

public interest to dispense with further service will not amount to an order for dismissal

or removal as there is no element of punishment. Fourthly, an order of compulsory

retirement will not be held to be an order in the nature of punishment or penalty on the

ground that there is possibility of loss of further prospects, namely, that the officer will

not get his pay till he attains the age of superannuation, or will not get an enhanced

pension for not being allowed to remain a few years in service and being compulsorily

retired. Where the authorities can make an order of compulsory retirement for any

reason and no reason is mentioned in the order, it cannot be predicted that the order of

compulsory retirement has an inherent stigma in the order. State of U.P. v. Shyam Lal

Sharma, (1971) II SCWR 307: 1972 SLR 53: AIR 1971 SC 2151: 1972(1) SCR 184:

1971(2) SCC 514: 1971 Lab IC 1369.

53. Well Established Propositions — Decisions of Supreme Court on

compulsory retirement establish following propositions:—

(i) If the rules of compulsory retirement prescribe a normal age of

superannuation and a reasonably long period of qualified service after which

compulsory retirement can be ordered, the order would not amount to dismissal or

removal under Art. 311(2) of the Constitution.

(ii) The power of compulsory retirement may be used when the authority

exercising the power cannot substantiate the misconduct which may be the real cause

for taking action. In case of compulsory retirement, the imputation or charge is not, in

terms, made a condition for the exercise of power. In case of compulsory retirement,

misconduct or inefficiency furnish the background while in case of dismissal or

removal they constitute the basis. Compulsory retirement has no stigma or implication

of misbehaviour or incapacity.

(iii) Compulsory retirement does not involve civil consequences. It does not

take away any of the rights that have accrued to the Government servant from his past

service. The order will not be one of punishment merely because there is the possibility

of loss of further prospects, namely, that he will not get his pay till the age of

superannuation or enhanced pension. The order would, however, amount to punishment

if it involves loss of benefits already earned.

(iv) There is no duty to hold an enquiry in case of compulsory retirement. If

any enquiry is made, it is only for the satisfaction of the authorities who take action.


(v) Even if grounds of compulsory retirement containing certain charge or

imputation are communicated to the concerned Government servant on his asking for

the grounds, the order does not cast any stigma.

(vi) If the order of compulsory retirement ex facie contains any express

imputation of stigma, it amounts to removal and order is bad unless it has been reached

after an enquiry under Art. 311(2).

(vii) If there are no express words of stigma in the order itself, the court cannot

go behind the order and look into the background and delve into official files to

discover if some kind of stigma could be inferred.

(viii) Judges cannot substitute their judgement for that of the administrator but

they are not absolved from minimal review to see whether a rational mind may

conceivably be satisfied that the compulsory retirement of the officer concerned is

necessary in public interest.

(ix) The State should produce the service record. If the record is not produced,

the Court is entitled to draw inference that the said record, if produced, would be

unfavourable to the State.

54. Offer of Retirement : Revocation of — Law is now well settled that an

officer is entitled to revoke his offer of retirement before its acceptance by the

appropriate authority. Raj Kumar v. Union of India, AIR 1969 SC 180; Balmukund

Oriya v. State of Orissa, AIR 1970 Orissa 130. In Anand Prakash v. State of Haryana,

1982 (2) SLR 368, reliance was placed on Jai Ram v. Union of India, AIR 1954 SC 584

and it was held that the Government servant has a right to withdraw his request for

voluntary retirement before the date of his retirement.

55. Voluntary Retirement : Revocation — The appellant after serving for

about 25 years on account of certain domestic trouble did not want to continue in

service after his attainment of 50 years of age. He therefore served a notice on the

Government under F.R. 56. Governor allowed him to retire. He was allowed to go on

one month”s leave preparatory to retirement w.e.f. 2nd July, on which date he

relinquished his charge of office. Thereafter, Government passed order countermanding

its earlier order allowing him to retire and asked him to join immediately after the

expiry of his leave. Order held null and void as F.R. 56 permitted appellant to retire

voluntarily. Dinesh Chandra Sangma v. State of Assam, 1977 SLJ 662: 1978 (1) SLR

25: AIR 1978 SC 17: 1978(1) SCR 607: 1977(4) SCC 441: 1977 Lab IC 1852.

56. Punishment of Compulsory Retirement Based to a Considerable Extent

on Material not Produced During Enquiry — Compulsory retirement bad, the

respondent having been denied reasonable opportunities. State of A.P. v. S.N.

Nizamuddin, AIR 1976 SC 1964: 1977(1) SCR 128: 1976(4) SCC 745: 1976 SLJ 553:

1976(2) SLR 532: 1976 Lab IC 1213.

Comments and opinion of Central Vigilance Commission were taken into

account by the disciplinary authority which were not brought to the notice of the

delinquent concerned. Impugned order is bad in law and inoperative. A.K. Roy

Choudhury v. Union of India, 1982 (1) SLR 443 1982 (1) SLJ 186 (Guj).


57. Punishment of Compulsory Retirement for Possession of

Disproportionate Assets — The petitioner, a gazetted officer, was punished as a result

of departmental proceedings for being in possession of an amount of Rs.2,440/-

disproportionate to his income. The order was quashed as the Court held that no

reasonable person could come to a conclusion that this amount could be said to be an

amount which was disproportionate to the income of the person who was in petitioner”s

position. Tej Ram Bery v. Union of India, 1973 (2) SLR 291: 1973 SLJ 738. See also A.

Muthuswamy v. Divisional Personnel Officer, (1987) 1 SLR 541 (CAT) (Madras); S.C.

Mehta v. Union of India, (1983) 3 SLR 714, (Delhi). For refusal of counting of previous

service for grant of post retirement benefits see Union of India v. Dr. S. Baliar Singh,

AIR 1998 SC 539: 1998(2) SCC 208: 1997(9) JT 287: 1998(1) SLR 103: (1998) 1 SCJ 348.

58. Wrong Reference to Power will not Vitiate Action if it can be Justified

under Some Other Powers — The omission on the part of the officers competent to

retire the petitioners in not scoring out the rules which are inapplicable to a particular

individual does not render the order bad. The reason is that one of the rules is

applicable to him and the omission to strike out the rules which are not applicable will

not in any manner affect the applicability of the rule mentioned. P. Radhakrishna v.

Government of A.P., AIR 1977 854: 1977 (1) SLR 258: 1977 SLJ 211. Merely on the

ground that the order mentions the wrong provision and describes that petitioner has

completed qualifying service of 25 years though infact, he has rendered 32 years of

qualifying superior service the order is not invalid or ineffective. Gorakhnath Ram

Swaroop Singh v. Government of M.P., 1980 (1) SLR 533.

59. Notes Below F.R. 56, Part of the Rule — Notes below the rule, virtually a

part of the rule. Baldev Raj Chadha v. Union of India, AIR 1981 SC 70: 1979(4) SCC

803(3): 1981 (1) SLJ 188: 1980 (3) SLR 1.

60. Voluntary Retirement : Various Points — (i) Under Rule 56(d)

Fundamental Rules, a Government servant has the option to retire after having attained

50 years of age or completing 25 years of qualifying service. Prior permission of the

Government is not necessary, unless disciplinary proceedings are pending against him

when he gives notice of voluntary retirement. A Sivaraman v. Tamil Nadu Water Supply

and Drainage Board, (1984) 1 SLR 305, 306, Paras 6-7 (Madras).

(ii) Notice for voluntary retirement [Fundamental Rules, Rule 56(k)] can be

withdrawn unilaterally so long as the employee remains in service. It can be withdrawn

before effective date when the Government servant exercised his right to retire

voluntarily. There is no question of “acceptance” of the notice given by the employee.

Union of India v. Harendra Lal, (1984) 1 SLR 1, 4, 6 Para 19 (Delhi) (DB).

(iii) An application for voluntary retirement [Rule 48 and 48-A Central Civil

Services (Pension) Rules, 1972] can be withdrawn before acceptance. A.N. Mohta v.

Government of India, Text Book Press, (1986) 2 SLR 108 CAT, Chandigarh.

(iv) An employee of the Karnataka State Government appealed in September

1978 for permission to retire voluntarily. There was no response and he died in June

1979. His widow claimed Rs.10,000 (payable to the widow) and gratuity etc. She was

directed to get succession certificate which she did. But Government then passed an


order granting permission to retire from June 1978. Government refused to pay the

benefits, saying that the employee did not die while in service. It was held that he must

be deemed to have died in service. Widow”s claim was legal. Madhuramaa v. State of

Karnataka, (1984) 3 SLR 496 (Kar).

(v) An officer gave notice of voluntary retirement [U.P. Fundamental Rules,

Rule 56]. After expiry of the notice period, he was convicted by a criminal court, but no

disciplinary proceedings had been initiated before such expiry. It was held that the

officer had already retired and disciplinary proceedings could not be taken thereafter.

Harish Chandra Srivastava v. Dy.Commissioner, Ferozabad, (1985) 3 SLR 305 (All)

(DB).

(vi) On the date of making application for voluntary retirement, neither

vigilance enquiry nor any disciplinary proceedings were pending or contemplated. It

was only after the appellant handed over charge on 15.2.1996 and requested for release

of retirement benefits on 15.2.1996, the show cause notice was issued. In these

circumstances it was held that the show cause notice was of no consequence which

appeared to have been issued only to defeat the claim voluntary retirement. Held further

that the discretionary power of Management under the scheme, to accept or reject the

request of voluntary retirement was not absolute. Manjushree Pathak v. Assam

Industrial Development Corporation Ltd., AIR 2000 SC 2769: 2000(7) SCC 390:

2000(2) LLJ 1125: 2000(5) SLR 256: 2000(4) LLN 580: 2000(87) FLR 190: 2000(97)

FJR 307

(vii) Denial of certain benefits to the employees opting for retirement in the

second scheme while granting benefits to employees who sought voluntary retirement

in the earlier scheme is discriminatory as it has no intelligible differentia except in

treating both the group of employees differentially. Vice-Chairman and M.D.,

A.P.S.I.D.C. Ltd. v. Ch. R. Varaprasad, 1999(5) SLR 693 AP (DB).

MAJOR PENALTIES CLAUSES (viii) and (ix)

Discharge

S Y N O P S I S

1. Discharge, lesser punishment than dismissal ................................................................. 220

2. Discharge without inquiry .............................................................................................. 220

3. Discharge after summary enquiry whether fit to be retained in service ......................... 220

4. Discharge at the end of tenure ........................................................................................ 220

5. Discharge for being medically unfit .............................................................................. 220

6. Discharge for having been found undesirable ............................................................... 220

7. Discharge for misappropriation and tampering with official record .............................. 220

8. Discharge for overstaying leave .................................................................................... 221

9. Discharge of probationer ............................................................................................... 221

10. Discharge for misconduct or inefficiency:


(i) Misconduct as motive or foundation .................................................................. 222

(ii) Discharge for unfitness .................................................................................... 222

(iii) Discharge for unsatisfactory performance ...................................................... 222

(iv) Discharge for unsuitability ............................................................................. 223

(v) Discharge after initiating enquiry ..................................................................... 223

11. Discharge from service on abolition of post .................................................................. 223

12. Discharge on one month”s notice .................................................................................. 223

13. Discharge when there is no reduction of establishment ................................................. 224

14. Discharge by authority who had bias against the petitioner .......................................... 224

15. Discharge, Public Service Commission not consulted .................................................. 224

16. Discharge of temporary employee: show cause notice not necessary ........................... 224

Removal

17. Removal or dismissal, meaning of ................................................................................ 225

18. Dismissal or removal of a Government servant ............................................................ 225

19. Removal, dismissal or termination, motive of order ..................................................... 225

20. Removal for not reporting on duty after transfer ........................................................... 226

21. Removal for overstaying leave or absence .................................................................... 226

22. Removal or dismissal only after inquiry ........................................................................ 226

23. Order of removal or dismissal whether by way of punishment ..................................... 227

24. Removal should be independent decision of the disciplinary authority ......................... 227

25. Removal and judicial review .......................................................................................... 228

26. Reversion to substantive post, not removal ................................................................... 228

Dismissal

27. Dismissal, condition of service ..................................................................................... 228

28. Dismissal for conviction on a criminal charge .............................................................. 228

29. Dismissal or termination for misconduct ....................................................................... 228

30. Dismissal of police officer for misconduct .................................................................... 229

31. Dismissal with retrospective effect ............................................................................... 229

32. Dismissal order, when becomes effective ..................................................................... 230

33. Dismissal, discharge or removal for overstaying leave ................................................. 230

34. Dismissal for absence from duty ................................................................................... 230

35. Dismissal for assaulting co-employee ............................................................................ 232

36. Dismissal for gravest misconduct ................................................................................... 232

37. Dismissal, power of ....................................................................................................... 232


Discharge

1. Discharge, Lesser Punishment Than Dismissal — “Discharge” has been

accepted as a punishment lesser than “dismissal”. Brundaban Padhi v. State of Orissa,

AIR 1970 Orissa 81; Govind Ram v. State of H.P., 1975 Lab IC 283.

Order of “dismissal” corrected later as a “discharge”. Penalty does not involve

stigma. Shashi Chaudhry v. State of J & K, 1969 SLR 236.

2. Discharge without inquiry — The employee was discharged from service

on the ground that he was absenting himself from duty habitually. But no charge-sheet

has been served and no explanation was called for and no opportunity was given and no

enquiry has been conducted. The order of discharge set aside. Ram Niwas (Ex Const.) v.

State of Haryana, 1999(1) SLR 463 P&H.

3. Discharge After Summary Enquiry Whether Fit to be Retained in Service — Summary enquiry held to ascertain whether temporary servant is fit to be

confirmed or retained in service. Government passed order to discharge him. Article

311 (2) will not apply. State of Orissa v. Ram Narayan Dass, (1961) 1 SCJ 209: AIR

1961 SC 177: (1961) I SCR 606; State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC

1089: 1968(3) SCR 234: 1968 SLR 701: 1968 Lab IC 1286: 1968 Cur LJ 687: (1969) 1

SCJ 51; Bishan Lal Gupta v. State of Haryana, (1978) 1 SCJ 215: AIR 1978 SC 363:

1978(2) SCR 513: 1978(1) SCC 202: 1978 (1) SLR 404: 1978 SLJ 220.

4. Discharge at the end of tenure — A temporary teacher in a leave vacancy

cannot be considered as discharged nor claim the status as discharged employee.

Discharge would connote for any other reason ejusdem generis due to abolition of the

post or course of study or such similar circumstances except for discharge due to

misconduct. Such a teacher only will be eligible to set up preferential claim for

appointment but not a teacher who fortuitously came to be appointed in a leave vacancy

much less for a limited period. State of Kerala v. Mother Anasthasia, Superior General,

AIR 1997 SC 1310: 1997(1) SLR 705: 1997(10) SCC 79: 1997(2) LLN 618: 1997(76)

FLR 1: 1997 Lab IC 1522.

5. Discharge for Being Medically Unfit — Appellant was declared medically

unfit. Government passed order to discharge him from service. Order is not an order of

dismissal or removal. Shrinivas Ganesh v. Union of India, AIR 1956 Bombay 455;

Hartwell Prescott Singh v. U.P. Government, AIR 1957 SC 886: 1958 SCJ 148.

6. Discharge for having been Found Undesirable — Temporary civil servant

served with the order “having been found undesirable to be retained in Government

service is hereby served with a month”s notice of discharge.” No doubt the order

purports to be one of discharge but it expressly casts a stigma and must be held to be an

order of dismissal. Order violates Article 311 of the Constitution. Jagdish Mitter v.

Union of India, AIR 1964 SC 449: 1964(1) LLJ 418.

7. Discharge for Misappropriation and Tampering with Official Record —

The petitioner was discharged from service for misappropriating government money

and tampering with official records. Held, the order casts aspersion and attaches stigma

to the officer and amounts in substance to dismissal which could not be passed without


complying with the provisions of Article 311 (2) of Constitution. Kalipada Ghosh v.

Sub-Divisional Officer, AIR 1969 Cal 164.

8. Discharge for Overstaying Leave — Overstaying leave without reasonable

cause or absenting without leave will not result in automatic discharge from service.

Reasonable opportunity must be given to show cause why he be not discharged..

Mafatlal Narain Dass Barot v. J.D. Rathod, (1967) 2 SCJ 64: (1967) 1 SCWR 30; Jai

Shankar v. State of Rajasthan, AIR 1966 SC 492: 1966(1) SCR 825: (1966) 1 SCWR

92: (1966) 1 SCJ 731.

9. Discharge of probationer — The period of probation is a period of test

during which the work and conduct of an employee is under scrutiny. If on an

assessment of his work and conduct during this period it is found that he was not

suitable for the post it would be open to the employer to terminate his services. His

services cannot be equated with that of a permanent employee who, on account of his

status, is entitled to be retained in service and his services cannot be terminated

abruptly without any notice or plausible cause. This is based on the principle that a

substantive appointment to a permanent post in a public service confers substantive

right to the post and the person appointed on that post becomes entitled to hold a lien on

the post. He gets the right to continue on the post till he attains the age of

superannuation or is dismissed or removed from service for misconduct etc. after

disciplinary proceedings in accordance with the Rules at which he is given a fair and

reasonable opportunity of being heard. He may also come to lose the post on

compulsory retirement. Life Insurance Corporation of India v. Raghavendra Seshagiri

Rao Kulkarni, AIR 1998 SC 327: 1997(8) SCC 461: 1997(77) FLR 782: 1997(5) SLR

774: 1998(2) LLJ 1161: 1998 Lab IC 411: 1998(1) LLN 56: 1998(92) FJR 25.

The law in relation to termination of service of an employee on probation is

well settled. If any order terminating the service of a probationer be an order of

termination simpliciter without attaching any stigma to the employee and if the said

order is not an order by way of punishment, there will be no question of the provisions

of Article 311 being attracted. In each case it has therefore to be determined whether

the impugned order is by way of punishment or not. Even if misconduct, negligence,

inefficiency may be the motive or inducing factor which influenced the authority to

terminate the services of probationer/temporary Government servant, such termination

cannot be termed as penalty or punishment. Union of India v. P.S. Bhatt, 1981(2) SCC

761: AIR 1981 SC 957: 1981 Lab IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981

SCC (Lab) 460: 1981(2) SCWR 88

If a probationer is discharged on the ground of misconduct or inefficiency or

for similar reason without a proper enquiry and without his getting a reasonable

opportunity of showing cause against his discharge it may in a given case amount to

removal from service within the meaning of Art. 311 (2) of Constitution. Samsher Singh

v. State of Punjab, 1974 (2) SLR 701: AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2)

SCC 831: 1974(2) SLR 701; Union of India v. S.B. Chatterjee, 1980 (2) SLR 365.

When employee was holding a temporary service and was on probation an order of

termination simpliciter was passed against him. As the service records were found

unsatisfactory, the termination order cannot be held arbitrary and capricious.


Tarakeswar Mahapatra v. Chairman, Haldia Development Authority, 1999(2) SLR 754

Cal (DB).

10. Discharge for Misconduct or Inefficiency: Generally an order of

discharge can be passed either for some misconduct or for inefficiency.

(i) Misconduct as motive or foundation — If misconduct is the foundation to

pass the order then an enquiry into misconduct should be conducted and an action

according to law should follow. But if it is motive, it is not incumbent upon the

competent officer to have the enquiry conducted and the service of a temporary

employee could be terminated, in terms of the order of appointment or rules giving one

month”s notice or pay salary in lieu thereof. Even if an enquiry was initiated, it could

be dropped midway and action could be taken in terms of the rules or order of

appointment. State of Uttar Pradesh v. Prem Lata Misra, AIR 1994 SC 2411: 1994 (4)

SCC 189: 1994 (27) ATC 558: 1994 (2) SLR 708: 1994 (2) SLJ 167: 1994 (2) LLN

427: 1995 (1) LLJ 28.

Once there is stigma, the principle is well settled, an opportunity has to be

given before passing any order. Even where an order of discharge looks innocuous, but

on close scrutiny, by looking behind the curtain, and if any material exist of misconduct

and which is the foundation of passing of the order of discharge, or such could be

reasonable inferred, then it leaves to no room of doubt that any consequential order,

event of discharge would be construed as stigmatic. Then opportunity has to be given.

Prithipal Singh v. State of Punjab, 2000(4) SLR 754 (SC): 2000(8) JT 26.

When an allegation is made by the employee assailing the order of termination

as one based on misconduct, though goes in innocuous terms, it is incumbent on the

court to lift the veil and to see the real circumstances as well as the basis and

foundation of the order complained of. In such a case the Court may lift the veil and see

whether the order was made on the ground of misconduct/inefficiency or not; but for

that an allegation of serious magnitude must be alleged by the discharged employee and

he must adduce sufficient evidence in support of it. Hanwant School Management

Committee, Jodhpur v. State of Rajasthan, 1999(1) SLR 713 Raj.

Finding of habitual absence and indiscipline cast stigma on the career of the

employee which would be impediment for future employment. Order of termination

simplicitor held not sustainable. Major Singh v. State of Punjab, 2000 (9) SCC 473:

2000 (9) JT 571: 2000 (5) SLR 141(SC).

(ii) Discharge for Unfitness — Fitness for the job is one of the most important

reasons for confirmation. Termination of service for being unfit for appointment does

not attach any stigma and the order was not an order passed by way of punishment.

Hari Singh Mann v. State of Punjab, 1974 (2) SLR 696: AIR 1974 SC 2263: 1975(1)

SCR 774: 1975(3) SCC 182: 1975 SLJ 14.

(iii) Discharge for Unsatisfactory Performance — Art. 311 is not applicable

to the discharge of the temporary Government servant even if his unsatisfactory

performance furnishes the motive for such termination. Manik Manmath Karnade v.

State of Maharashtra, 1980 SLJ 401: 1980 (1) SLR 144.


(iv) Discharge for Unsuitability — It is well settled that a probationer or

temporary servant can be discharged if it is found that he is not suitable for the post

which he is holding. This can be done without complying with the provisions of Art

311(2) unless the services are terminated by way of punishment. Ranjit Kumar v. State

of West Bengal, AIR 1967 Cal 262; Dr. T.C.M. Pillai v. Indian Institute of Technology,

Madras, 1971 (2) SCC 251: AIR 1971 SC 1811: 1971 Supp SCR 555: 1971 (2) SLR

679. Order was passed with a view to inflict punishment. As it was passed in violation

of Art. 311(2), was quashed. Rama Pratap Singh v. State of U.P., 1982 Lab IC 1890.

The authority may come to the conclusion that on account of inadequacy for

the job or for any temperamental or other object not involving moral turpitude, the

probationer is unsuitable for the job and hence she must be discharged. It would not

amount to punishment. Perpetua E. Rodrigues v. Goa Public Service Commission, Goa,

1999(3) SLR 667 Bom (DB).

Where the driving of the staff car by the probationer was not satisfactory and

that, therefore, they have terminated his services during probation. The very object of

the probation is to test the suitability and if the appointing authority finds that the

candidate is not suitable, it certainly has power to terminate the services of the

employee. Under these circumstances, it cannot but be held that the reasons mentioned

constitute motive and not foundation for termination of service. K.V. Krishnamani v.

Lalit Kala Academy, AIR 1996 SC 2444: 1996 Supp (2) SCR 844: 1996(5) SCC 89:

1996 SCC(L&S) 1132: 1996 Lab IC 2063: 1996(2) LLJ 661: 1996(74) FLR 1936:

1996(3) SLJ 29: 1996(4) SLR 504: 1996(2) LLN 495.

(v) Discharge after initiating inquiry — Department instead of taking inquiry

to logical conclusion passed an order of discharge of employee. It was held that the

order was punitive in character and therefore, was not sustainable. Rajinder Kumar (Ex-

Constable) v. State of Haryana, 2002(2) SLR 750 P&H (DB).

11. Discharge from Service on Abolition of Post — (i) Compliance with the

requirements of Art 311(2) not necessary. Mohinder Singh v. Union of India, AIR 1969

Delhi 170: 1969 DLT 595; P.Bhupathi Reddy v. Govt. of A.P., AIR 1968 AP 307;

M. Ramanatha Pillai v. State of Kerala, (1974) 1 SCWR 1: AIR 1973 SC 2641: 1974

(1) SCR 515: 1973 (2) SCC 650: 1974 (1) SLR 225.

(ii) The termination of post in good faith and the consequent termination of the

service of the incumbent of that post would not attract Art. 311. State of Haryana v.

Des Raj, AIR 1977 SC 1199: 1976 SLJ 222: 1976 (1) SLR 191; K. Rajindran v. State of

Tamil Nadu, AIR 1982 SC 1107: 1982 (3) SCR 628: 1982 (2) SCC 273: 1982 (1) SLJ

604: 1982 (2) SLR 196: 1982 Lab IC 876.

12. Discharge on One Month”s Notice — Appellant was a temporary

Government servant and was not in quasi-permanent service. His services could be

terminated on one month”s notice under Rule 12 of M.P. Government Servants

(Temporary and Quasi-Permanent Service) Rules, 1960. There was no provision in the

order of appointment or in any agreement that his services could not be so terminated.

Ram Gopal Chaturvedi v. State of M.P., (1969) 1 SCWR 1115: AIR 1970 SC 158: 1970


(1) SCR 472: 1969 (2) SCC 240: (1970) 1 SCJ 257. Under terms of service. Somnath

Sahu v. State of Orissa, 1981 (2) SLR 550 (SC.).

When service conditions provided termination on one month notice and order

of termination was served two days before the date from which termination was to be

effected, it was held that the Order of termination was bad in law even employee was

temporary. Prabhudayal Birari v. M.P. Rajya Nagrik Aapurti Nigam Ltd., AIR 2000 SC

3058: 2000 (5) SLR 124 (SC): 2002 (6) SCC 703: 2000 (2) LLJ 1105: 2000 (4) LLN

608: 2000 (87) FLR 4: 2000 (97) FJR 299.

13. Discharge When There is no Reduction of Establishment — The State

has no power to terminate the services when the post itself was continuing. If action by

way of disciplinary proceedings was taken, then the State should have complied with

Art. 311 of Constitution. State of Haryana v. Rajendra Sareen, (1972) 2 SCJ 604: AIR

1972 SC 1004: 1972(2) SCR 452: 1972(1) SCC 267: 1972 SLR 112: 1972 Lab IC 546.

14. Discharge by Authority who had Bias Against the Petitioner — Petitioner had put in more than three years of service as Departmental Branch Post

Master. She had made complaint against the Superintendent of Post Offices, alleging

misbehaviour towards her. A person who has been charged with a conduct which would

entail his dismissal from the office cannot be expected to have given fair and impartial

consideration to the case of petitioner for appointment. Order set aside. A. Santha

Kumari v. Regional Director of Postal Services, 1982 (2) SLJ 173.

15. Discharge, Public Service Commission not Consulted — Provisions of

Art. 320(3)(c) are not mandatory and do not confer any rights on the public servant.

State of U.P. v. M.L. Srivastava, 1958 SCJ 150: 1958 SCR 533: AIR 1957 SC 912; Ram

Gopal Chaturvedi v. State of M.P., (1969) 1 SCWR 1115: AIR 1970 SC 158: 1970(1)

SCR 472: 1969(2) SCC 240.

16. Discharge of Temporary Employee: Show Cause Notice if Necessary — The State Government has the right to terminate the service of temporary

civil servant without issuing any notice to him to show cause against the proposed

action. Ram Gopal Chaturvedi v. State of M.P., (1969) 1 SCWR 1115: AIR 1970 SC

158:1970(1) SCR 472: 1969(2) SCC 240: (1970) 1 SCJ 257.

Once an employee attains the “temporary” status, he becomes entitled to



services under the Union of India. Nar Singh Pal v. Union of India, AIR 2000 SC 1401:

2000(3) SCC 588: 2000(3) JT 593: 2000(1) LLJ 1388: 2000(96) FJR 502: 2000(2) SLR

592: 2000(3) SLJ 332: 2000 Lab IC 1377: 2000(2) LLN 407: 2000(85) FLR 458.

A purely temporary government servant has no right to the post and her

services were terminated in accordance with the terms and conditions of her

appointment, which would not result in evil consequences. Perpetua E. Rodrigues v.

Goa Public Service Commission, Goa, 1999(3) SLR 667 Bom (DB).

An employee of the Directorate of Field Publicity, Andhra Pradesh, abstained

from duty without leave on more than one occasion and was also guilty of


unsatisfactory behaviour. His services were terminated with one month”s notice. The

order itself did not cast any stigma. Art. 311 of the Constitution was held to be inapplicable.

Y.N. Reddy v. Director of Field Publicity, (1983) 2 SLR 431, 435 Para. 6, 7, 8 (AP).

Removal

17. Removal or Dismissal, Meaning of — The words “dismissed” and

“removed” mean nothing more or less than the termination of service and cover every

termination of service. Removal and dismissal stand on the same footing except that

dismissal disqualifies for future employment under the Government. Moti Ram Deka v.

General Manager, N.E.F.Rly, AIR 1964 SC 600: 1964(5) SCR 683: 1964(2) LLJ 467;

Shyam Lal v. State of U.P., AIR 1954 SC 369: 1955(1) SCR 26: 1954 SCJ 493; Khem

Chand v. Union of India, 1958 SCJ 497: AIR 1958 SC 300: 1958 SCR 1080;

Parshottam Lal Gupta v. State of Punjab, AIR 1967 Punj. 415; see also Workers

employed in Hirakud Dam v. State of Orissa, AIR 1971 SC 2242: 1971(3) SCR 646:

1971(1) SCC 583: 1971(2) SLR 219: 1971 Lab IC 1381; (1972) 1 SCJ 694: Mohammad

Abdul Salam Khan v. Sarfaraz Ahmed, AIR 1975 SC 1964: 1974 SLJ 352: 1975 (1)

SLR 65; U.P. Government v. Sabir Hussain, AIR 1975 SC 2045: 1975 Supp SCR 354:

1975(4) SCC 703: 1975 SLJ 525: 1975 (2) SLR 267; Barda Kanta Misra v. High Court

of Orissa, (1977) 1 SCJ 172: AIR 1976 SC 1899: 1976 Supp SCR 561: 1976(3) SCC

327: 1976(2) SLR 186: 1976 SLJ 529: 1976 Lab IC 1202.

18. Dismissal or Removal of a Government Servant — Art. 311(2) of the

Constitution lays down that no person who holds a civil post under the Union or a State

shall be dismissed or removed or reduced in rank except after an inquiry in which he

has been informed of the charges against him and given a reasonable opportunity of

being heard in respect of those charges. Art. 311 makes no distinction between

permanent and temporary posts and extends its protection equally to all Government

servants holding permanent or temporary posts or officiating in any of them. The

protection of Art. 311 is available only where dismissal, removal or reduction is sought

to be inflicted by way of punishment and not otherwise. Parshottam Lal Dhingra v.

Union of India, 1958 SCJ 217: 1958 SCR 828: AIR 1958 SC 36. The principles

formulated in this case have furnished the principal guidelines in all future cases

relating to dismissal, removal or reduction in rank of Government servants.

19. Removal, Dismissal or Termination, Motive of Order — The Court has

to see the truth and substance of the matter and has to determine whether an order

though couched as a simple order of termination really amounts to removal, dismissal

or termination from service. State of Punjab v. Sukh Raj Bahadur, (1969) 1 SCJ 51:

AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701; Swami Saran Saxena v. State of

U.P., 1969 SLR 787; Dinkar Keshav Bedekar v. State of Maharashtra, 1970 Lab IC

139; State of Bihar v. Shiv Bhikshuk Mishra, 1970 SLR 863: (1970) II SCWR 606:

(1971) 2 SCJ 68; Sharat Chand Mishra v. State of U.P., 1972 SLR 184; K.K. Mittal v.

Union of India, 1974 (2) SLR 602.

Even if misconduct, negligence, inefficiency may be the motive or the inducing

factor which influences the authority to terminate the service of the employee on

probation, such termination cannot be termed as penalty or punishment when there are

no express words in the impugned order itself which throw a stigma on the Government


servant. Oil and Natural Gas Commission v. Dr Md. S.Iskandar Ali, AIR 1980 SC

1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 SLJ 591: 1980 (2)

SLR 792; Union of India v. P.S. Bhatt, 1981(2) SCC 761: AIR 1981 SC 957: 1981 Lab

IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981 SCC (Lab) 460: 1981(2) SCJ 65:

1981(2) SCWR 88; State of Uttar Pradesh v. Prem Lata Misra, AIR 1994 SC 2411:

1994 (4) SCC 189: 1994 (27) ATC 558: 1994 (2) SLR 708: 1994 (2) SLJ 167: 1994 (2)

LLN 427: 1995 (1) LLJ 28; Kunwar Arun Kumar v. Uttar Pradesh Electronics

Corporation Ltd., 1996 Supp (8) SCR 19: 1997(2) SCC 191: 1997(1) LLN 570: 1997(1)

SLR 136: 1997(1) SLJ 234: 1997(91) FJR 55: 1997(3) LLJ 791.

20. Removal for not Reporting on Duty After Transfer — On plaintiff”s not

reporting on duty after transfer an order was passed that he had lost his lien on post.

Held, the order amounted to removal and could not be passed except in adherence to the

provisions of Art. 311 of the Constitution. State of Mysore v. Anthony Benedict, 1969 SLR 21.

21. Removal for Overstaying Leave or Absence — The removal of a

Government servant from service for overstaying his leave or for absenting himself

without leave is illegal even though it is provided by the service regulation that any

individual who absents himself without permission after the end of his leave would be

considered to have sacrificed his appointment and may be reinstated only with the

sanction of competent authority. This cannot entail automatic removal from service

without giving such person reasonable opportunity to show cause why he be not

removed. Jai Shankar v. State of Rajasthan, (1966) 1 SCJ 731: AIR 1966 SC 492:

1966(1) SCR 825; Mafatlal Narandas Barot v. J.D. Rathod, (1961) 1 SCWR 30: AIR

1966 SC 1364: 1966(3) SCR 40: (1967) 2 SCJ 64; B.M. Tripathi v. State of U.P., AIR

1971 All. 346: 1971 (2) SLR 738; Sobhana Das Gupta v. State of Bihar, AIR 1973

Patna 431: 1974 (2) SLR 674; State of Assam v. Akshaya Kumar Deb, AIR 1976 SC 37:

1975(4) SCC 339: 1975(2) SLR 430: 1975 Lab IC 1753: 1975 SLJ 592: (1976) 2 SCJ

246; M.M. Joseph v. Union of India, 1979 (3) SLR 434; State of Rajasthan v. Mangal

Singh, 1981 (1) SLJ 173.

22. Removal or Dismissal Only After Inquiry — The words “dismissed” and

“removed” are technical words. Both in the case of removal or dismissal there is a

stigma. It also involves loss of benefit. No person mentioned in Art. 311(1) shall be

dismissed or removed except after an inquiry in which he has been informed of the

charges against him and given a reasonable opportunity of being heard in respect of

those charges. M. Ramanatha Pillai v. State of Kerala, AIR 1973 SC 2641: 1974(1)

SCR 515: 1973(2) SCC 650: 1974 (1) SLR 225: (1974) 1 SCWR 1; Harish Chandra v.

Dy. Director of Education, AIR 1965 Raj 108; Mohd. Ibrahim v. State, 1970 SLR 129.

The penalty of removal from service cannot be imposed without recourse to disciplinary

proceedings. Uttar Pradesh Co-operative Land Development Bank Ltd. v. Chandra

Bhan Dubey, AIR 1999 SC 753: 1999 (1) SCC 741: 1999 (1) CLT 134 (SC): 1999 (2)

SLR 576: 1999 (1) LLJ 633: 1999 (1) LLN 1081: 1999 (3) SLJ 124 .

If the termination is punitive in nature and is brought about on the ground of

misconduct. Article 311(2) would be attracted and in that situation it would be

incumbent upon the employer, in the case of Government service, to hold a regular

departmental enquiry. In any other case also, specially those relating to statutory


corporations or Government instrumentalities, a termination which is punitive in nature

cannot be brought about unless an opportunity of hearing is given to the person whose

services, even during the period of probation, or extended period, are sought to be

terminated. Life Insurance Corporation of India v. Raghavendra Seshagiri Rao

Kulkarni, AIR 1998 SC 327: 1997(8) SCC 461: 1997(77) FLR 782: 1997(5) SLR 774:

1998(2) LLJ 1161: 1998 Lab IC 411: 1998(1) LLN 56: 1998(92) FJR 25.

Removal from service without holding any inquiry and without affording an

opportunity to delinquent to defend himself. Neither any charge sheet served nor show

cause notice given. Held that principles of natural justice and fair play not having been

followed the order of dismissal held to be without jurisdiction and contrary to the

relevant provisions. Ram Sahan Rai v. Sachiv Samanaya Prabandhak, AIR 2001 SC

1173: 2001(3) SCC 323: 2001(3) JT 95: 2001(1) LLJ 1073

But removal from service (an engine driver) after affording full opportunity at

the enquiry, and also after giving a “show cause” notice against proposed punishment is

legal, and cannot be questioned. Deo Narayan v. Union of India, (1983) 1 SLR 133-

134, Para 8 (Pat).

23. Order of Removal or Dismissal Whether by Way of Punishment —

There can be no hard and fast rule, nor any abstract proposition of law for the purpose

of determining as to whether the impugned order is simpliciter or by way of

punishment. It would depend upon the facts and circumstances of each case as to

whether it can be deduced that the order is by way of penalty or not. Shamsher Singh v.

State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831: 1974(2) SLR

701: 1974 Lab IC 1380; Subhash Chandra Chaudhary, Jamuna Ram v. Bihar State

Warehousing Corporation, 1980 (2) SLR 760.

The High Court on its administrative side decided to keep disciplinary

proceedings against the judicial officer pending for the purpose of imposing the cut on

his retiral benefits. It was held that the conclusion is obvious that action of the High

Court in retiring judicial officer was based on the allegation of misconduct, which was

subject matter of the inquiry before a judge of the High Court and which appears to be

the basis for recording of adverse remarks by the High Court in the ACR of the officer

for the year 1991-92. Held that the impugned order of compulsorily retiring judicial

officer though innocuously worded was in fact an order of his removal from service and

cannot be sustained. High Court of Punjab and Haryana v. Ishwar Chand Jain, AIR

1999 SC 1677: 1999 (4) SCC 579: 1999 (2) SLR 531: 1999 (2) KLT 34 (SN): 1999 Lab

IC 1823: 1999 (3) LLN 28: 1999 (3) SLJ 230.

24. Removal should be independent decision of the disciplinary authority

— Recommendations of the Chief Vigilance Officer though not binding on the

disciplinary authority but disciplinary authority passed the order of removal from

service at the time when the directive of the vigilance officer was operative. Held that it

can be presumed that the disciplinary authority was acting in accordance with the said

directive and imposed punishment in accordance with the recommendation made by the

Chief Vigilance Officer. The order was set aside and the matter was remitted back to

the disciplinary authority for reconsideration. Satyendra Chandra Jain v. Punjab

National Bank, 1997 (11) SCC 444.


25. Removal and judicial review — The court is not a court of appeal to go

into the question of imposition of the punishment. It is for the disciplinary authority to

consider what would be the nature of the punishment to be imposed on a Government

servant based upon the proved misconduct against the Government servant. Its

proportionality also cannot be gone into by the Court. The only question is: whether the

disciplinary authority would have passed such an order. It is settled law that even one

of the charges, if held proved and sufficient for imposition of penalty by the

disciplinary authority or by the appellate authority, the Court would be loath to interfere

with that part of the order. The order of removal does not cast stigma on the employee

to disable him to seek any appointment elsewhere. Therefore interference with such

order, under the circumstances, held to be not permissible. State of Uttar Pradesh v.

Nand Kishore Shukla, AIR 1996 SC 1561: 1996 (3) SCC 750: 1996 (2) SLR 504: 1996

SCC (L&S) 867: 1996 (2) LLJ 672: 1996 (2) LLN 241; Government of Tamil Nadu v.

A. Rajapandian, AIR 1995 SC 561: 1995 (1) SCC 216: 1995(29) ATC 89: 1994(5) SLR

745: 1995(2) SLJ 216: 1995(1) LLJ 953: 1996(2) LLN 459.

26. Reversion to Substantive Post, Not Removal — (i) Reversion to

substantive post is not removal from service. Fateh Singh Chugh v. State of Punjab,

AIR 1970 Punj 315.

(ii) Where an order of reversion of a person who had no right to the post, does

not show ex-facie that he was being reverted as a measure of punishment or does not

cast any stigma on him, the courts will not normally go behind that order to see if there

were any motivating factors behind that order. S.P. Vasudeva v. State of Haryana, AIR

1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 (2) SLR 740: 1976 SLJ 271.

(iii) Even if misconduct, negligence, inefficiency may be the motive or the

inducing factor which influenced the authority to pass the order of reversion, the said

order cannot be said to be by way of punishment. Union of India v. P.S. Bhatt; 1981

1981(2) SCC 761: AIR 1981 SC 957: 1981 Lab IC 504: 1981(1) SLJ 212: 1981(1) SLR

370: 1981 SCC (Lab) 460: 1981(2) SCJ 65: 1981(2) SCWR 88; Union of India v.

S.S.Chatterjee, 1980 (2) SLR 365. See also G. Venugopal v. Director of Administrator

Appellate Authority, 1993 (4) SLR 81 (CAT Hyderabad).

Dismissal

27. Dismissal, Condition of Service — Dismissal of an official is a matter

which falls within “conditions of service” of public servants. State of M.P. v. Shardul

Singh, (1970) 2 SCJ 442: (1970) 1 SCWR 65: 1970 SLR 101.

28. Dismissal for Conviction on a Criminal Charge — See Commentary

under Rule 19(i).

29. Dismissal or Termination for Misconduct — There were allegations of

misconduct against the respondent and he was suspended during the pendency of

enquiry. Sanction for his prosecution was also given. No other person of the department

excepting respondent was retrenched. It is clear that the order terminating his service

was only a guise for his dismissal. Procedure laid down under Art. 311 should have

been followed. Order held null and void and inoperative. Respondent entitled to his pay


and allowances. Art. 102 of Constitution applies and not Art. 120. State of Rajasthan v.

Ratan Lal Sogani, 1970 SLR 87.

Where the employee in an Ordnance factory was twice found sleeping during

duty hours, he is not fit to remain in service. However, removal was substituted for

dismissal. Kamal Kumar Ahirwar v. Union of India, (1988) 5 SLR 593 (CAT Jabalpur).

30. Dismissal of Police Officer for Misconduct — The provisions of Police

Rules are to be complied with. Departmental action in disregard thereof was invalid.

State of U.P. v. Babu Ram Upadhya, (1961) 2 SCR 679; Jagan Nath v. Sr. Supdt. of

Police, AIR 1962 Punjab 38; Delhi Administration v. Chanan Shah, (1969) 2 SCJ 644:

(1969) II SCWR 86: AIR 1969 SC 1108: 1969(3) SCR 653: 1969(1) SCC 737: 1969

SLR 217 followed in Union of India v. Ram Kishan, (1971) 1 SCWR 838: AIR 1971 SC

1403: 1971 Supp SCR 757: 1971(2) SCC 352: 1971 Lab IC 894: 1971 CAR 279; See

also State of Haryana v. Surjan Singh, (1990) 2 SLR 88 (P&H).

A constable of Police consuming liquor on duty and assaulting his colleague. It

was held to be gravest act of indiscipline and an order of dismissal held to be proper.

State of Punjab v. Jagir Singh, 2002(1) SLR 398 P&H.

Absence from duty by Police Officer is gravest act of misconduct for which

dismissal was held to be justified. State of Punjab v. Surjit Singh, 2002(3) SLR 148 P&H.

An Inspector of Police, a higher ranking officer, if he demands and accepts

illegal gratification and restrains himself from initiating prosecution against the

offender, it would have an effect on the maintenance of law and order in the society.

Order of dismissal from service was therefore affirmed. Government of Andhra Pradesh

v. B. Ashok Kumar, AIR 1997 SC 2447: 1997(5) SCC 478: 1997(5) JT 412: 1997(2)

LLN 600: 1997(76) FLR 598: 1997(2) SLJ 238: 1997 Lab IC 2353: 1997(2) UJ 185:

1997(4) SLR 242.

When abusive language is used by anybody against a superior, it must be

understood in the environment in which that person is situated and the circumstances

surrounding the event that led to the use of the abusive language. No straight jacket

formula could be evolved in adjudging whether the abusive language in the given

circumstances would warrant dismissal from service. Each case had to be considered on

its own facts. What was the nature of the abusive language used by the police constable

in this case was not stated. Therefore the imposition of punishment of dismissal from

service was held to be harsh and disproportionate to the gravity of charge imputed to

the delinquent constable. Ram Kishan v. Union of India, AIR 1996 SC 255: 1995(6)

SCC 157: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71) FLR 929.

31. Dismissal with Retrospective Effect — An order of dismissal with

retrospective effect is in substance an order of dismissal as from the date of the order

with the super added direction that the order should operate retrospectively as from an

anterior date. The two parts of the order are clearly severable. Assuming that the second

part of the order is invalid, there is no reason why the first part of the order should not

be given the fullest effect. The court cannot pass a new order of dismissal, but surely it

can give effect to the valid and severable part of the order. R. Jeevaratnam v. State of

Madras, (1966) II SCWR 464: AIR 1966 SC 951: 1966(2) SCR 204: (1967) 1 SCJ 404:


1967 SLR 657. In Puran Singh v. State of Punjab, 1982 (2) SLR 126, the dismissal was

also quashed.

Order of dismissal can not be passed with retrospective effect. Punjab State

Electricity Board v. Gurpal Singh Bhamra, (1989) 3 SLR 19 (P&H) (S.S. Sodhi, J.).

See also Dharam Veer Sharma v. United Commercial Bank, 1997 (3) SLR 319 (P&H);

Gurudas G. Priolkar v. Union Bank of India, 1997 (5) SLR 157 (Bom) (DB);

Subhashish Mukherji v. State of Haryana, 1997 (5) SLR 746 (P&H); Satyendra Jeet

Singh v. Union of India, ATR (1986) 2 CAT 268.

32. Dismissal Order, When Becomes Effective — Mere passing of the order

of dismissal would not make it effective unless it was published and communicated to

the concerned officer. State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313:

(1966) 2 SCJ 777: 1966(2) LLJ 188; Rama Kant Banik v. District School Board, AIR

1969 Calcutta 397; Bansidhar Panigrahi v. State of Orissa, 1975 SLJ 150: 1975 (2)

SLR 725: 1975 Lab IC 932.

When an order of dismissal or removal from service is sent out, it is effective

on the authority concerned, but so far as the Government servant is concerned, it

becomes effective only when he is apprised of it either by oral communication or by

actual service of it upon him. Umashankar Chatterjee v. Union of India, 1982 (2) SLJ

368: 1982 (2) SLR 724.

Where order of termination is passed by the appointing authority, its

communication by any other authority would not render it bad in law. Union of India v.

Sumitra Devi, 2000 (2) SLR 403 SC.

33. Dismissal, Discharge or Removal for Overstaying Leave — Dismissal,

discharge or removal from service for overstaying leave without inquiry and without

giving reasonable opportunities to the employee concerned as required by Art. 311 is

illegal. Jai Shankar Kar v. State of Rajasthan, AIR 1966 SC 492: 1966(1) SCR 825:

1966(2) LLJ 140: (1966) 1 SCJ 731; Mafatlal Narandas Barot v. J.D. Rathod, AIR

1966 SC 1364: 1966(3) SCR 40; Maqbool Hussain v. Supdt. of Police, 1969 SLR 660;

see also Sahoodul Haque v. Registrar, Co-operative Societies, (1974) II SCWR 346:

AIR 1974 SC 1896: 1975(3) SCC 108: 1974(2) SLR 547: 1974 Lab IC 1276.

34. Dismissal for Absence from Duty — Pay deducted for absence from duty

without leave and absence was treated leave without pay. Employee cannot be

dismissed for absence from duty under such circumstances. Tito Francisco Perera v

Administrator of Goa, 1978 SLJ 614; Anwar Khan v. Administrator of Goa, 1978 SLJ

450; Chamarthal Kalan Co-operative Agricultural Service Society Ltd., v. Nand Singh,

(1994) 1 SLR 385 (P&H); Ram Kumar v. State of Haryana, 1997 (5) SLR 504 (P&H).

Gravity of such misconduct as an act of indiscipline cannot be mitigated it as

detrimental effect on public rights convenience and therefore, order of dismissal was

restored. Divisional Controller, NWKRTC, Bagalkot v. Raghavendra Madahava Katti,

2002(1) SLR 43 Kar (DB); Absence from duty without proper intimation is a grave

offence warranting removal from service as mere making a request for leave which was

not accepted is not sufficient explanation. Mithilesh Singh v. Union of India, 2003 (2)

SLR 620 SC.


Once the leave is regularised without pay then there is no ground to terminate

the services. Chhotey Lal v. General Manager, 2001(4) SLR 387 Delhi. Absence from

duty was condoned by the SP who ordered the treatment of his absence from duty as

leave with pay. It was held that the charge of absence from duty if there was any, stood

condoned. State of Punjab v. Charanjit Singh, 2001(1) SLR 183 P&H.

In another case when period of absence was treated as leave without pay it was

held that it does not obliterate order of dismissal as it is only for maintaining correct

service record. Deputy Commissioner of Police v. Jorawar Singh, 2001(1) SLR 158

Delhi (DB): 2000(4) AD(Delhi) 873 See also Maan Singh v. Union of India, 2003 (2)

SLR 607 SC explaining State of Punjab v. Bakshish Singh, 1998 (8) SCC 222: 1998 (5)

SLR 625 SC and State of Madhya Pradesh v. Harihar Gopal, 1969 SLR 274 SC.

While considering the misconduct of absence from duty the punishing authority

or appellate authority ought to consider the length of service rendered by the employee,

while imposing the punishment. Mahipat (Ex. Constable) v. State of Haryana, 1994(4)

SLR 311 relied in Jamila v. State of Rajasthan, 2002(3) SLR 501 (Raj).

Employee remained absent without leave for 162 days and dismissed.

Dismissal order was set aside by Labour Court on misplaced sympathy. Held that

gravity of such misconduct as an act of indiscipline cannot be mitigated it as

detrimental effect on public rights convenience and therefore, order of dismissal was

restored. Divisional Controller, NWKRTC, Bagalkot v. Raghavendra Madahava Katti,

2002(1) SLR 43 Kar (DB).

The abandonment of service should not be inferred unless the intention of the

workman to abandon the service is clear and unambiguous. The intention may be

inferred from the acts and conduct of the party and is a question of fact. Temporary

absence is not ordinarily sufficient to constitute as “abandonment of office”. There

must be total or complete giving up of duties so as to indicate an intention not to

resume the same. When a workman, on expiry of his leave, submitted several

representations to the employer (as happened in the instant case) (a) expressing his

intention and willingness to join the duty and (b) praying for permission of the higher

authority to join his duty and when the employer chose not to reply to such

representations thereby keeping the workman waiting for permission to join the duty

and when in this process and for these reasons the workman could not join his duty, in

such circumstances, absence of the workman cannot be equated with “absent without

seeking permission” so as to attract the fiction created by the work “shall be deemed to

have left the service of the company on his own record.” Radha Gobinda Ghatak v.

State of West Bengal, 1999(2) SLR 142 Cal.

The unduly long absence from duty without sanctioned leave in given cases

may result in voluntary presumption of abandonment of service and in such case no

element of punishment is involved which may require adherence to principles of natural

justice. Anand Bharti v. State of Rajasthan, 2002(3) SLR 60 Raj (DB).

See also Punjab Land Development & Reclamation Corporation Ltd. v.

Presiding Officer, Labour Court, U.T., Chandigarh, 2001(1) SLR 467 P&H (DB),


Punjab State v. Hari Singh, 2001(1) SLR 151 P&H and Gopal Clothing Company Ltd.

v. Presiding Officer, 2001(1) SLR 142 (DB).

While considering the misconduct of absence from duty the punishing authority

or appellate authority ought to consider the length of service rendered by the employee,

while imposing the punishment. Mahipat (Ex. Constable) v. State of Haryana, 1994 (4)

SLR 311 relied in Jamila v. State of Rajasthan, 2002 (3) SLR 501 (Raj).

35. Dismissal for assaulting co-employee — Serious act of misconduct of

assault on a co-workman on the premises of the factory proved against the workman. A

clean past record does not give a licence or permission to the workman to commit an

assault and to get away with the same on the ground of clean and good past. Punishment

of dismissal cannot be said to be shockingly disproportionate. Precipenium Valve

Manufacturers v. Presiding Officer, 2001 (4) SLR 85 Bom.

An employee in a drunken state assaulting his superior in office is a grave

misconduct. For such misbehaviour the employee was convicted but released on

probation. But it was held that release on probation means misconduct was not serious

and such employee could continue in service. Babulal v. State of Rajasthan, 2002 (1)

SLR 599 Raj (DB).

36. Dismissal for gravest misconduct— A constable of Police consuming

liquor on duty and assaulting his colleague. It was held to be gravest act of indiscipline

and an order of dismissal was held to be proper. State of Punjab v. Jagir Singh,

2002(1) SLR 398 P&H. Absence from duty by Police Officer is gravest act of

misconduct for which dismissal was held to be justified. State of Punjab v. Surjit Singh,

2002 (3) SLR 148 P&H.

37. Dismissal, Power of — Power of dismissal cannot be exercised by an

authority subordinate in rank to the appointing authority. State of U.P. v. Ram Naresh

Lal, AIR 1970 SC 1263: 1970(3) SCC 173: 1970 SLR 819: 1970 Lab IC 1063.

Article 311 gives protection to a member of a civil service of the Union or an

all-India service or a civil service of a State or to a person holding a civil post under the

Union or a State against dismissal or removal by an authority subordinate to that by

which he was appointed. Article 311 does not provide that a member of a civil service

or a person holding a civil post either under the Union or a State cannot be dismissed or

removed by an authority except the appointing authority. Held that there is no

requirement that the authority which takes disciplinary action must continue to have the

power of making appointment to the civil service or on a civil post under the Union or a

State. It can be any other authority so long as it is not subordinate in rank or grade to

the authority by which the delinquent Government servant was appointed. That is the

only requirement of Article 311 and nothing more can be read into it. Jai Jai Ram v.

Uttar Pradesh State Road Transport Corporation, AIR 1996 SC 2289: 1996(4) SCC

727: 1996(6) JT 463: 1996 SCC(L&S) 1071: 1996 Lab IC 2034: 1996(2) LLJ 729:

1996(3) SLJ 15: 1996(5) SLR 141: 1996(74) FLR 2016: 1996(2) LLN 465.

However it is not necessary that the authority competent to impose the penalty

must initiate the disciplinary proceedings and that the proceedings can be initiated by

any superior authority who can be held to be the controlling authority who may be an


officer subordinate to the appointing authority. Steel Authority of India v. R.K.

Diwakar, AIR 1998 SC 2210: 1997(11) SCC 17: 1997(7) JT 404: 1997(3) CLT

379(SC): 1997(77) FLR 351: 1997(5) SLR 234: 1998(1) LLJ 344: 1998(1) SLJ 57:

1998 Lab IC 2122; See also Ram Kishan v. Union of India, AIR 1996 SC 255: 1995(6)

SCC 157: 1995(7) JT 43: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71)

FLR 929; Additional Supdt. of Police v. T. Natarajan, 1998(9) JT 257: 1999(3) LLJ

1482: 2000(85) FLR 39.

The appointment was made by the Commandant General even though the

Provincial Government was to make such appointment. Therefore, the Commandant

General had the power to dismiss the appellant. The dismissal order would not be void

on the ground that it is made by an authority lower than the appointing authority.

Ramanand Singh v. State of Bihar, 1982(1) SCC 214: AIR 1982 SC 1394: 1982(1) SLR

693: 1982 BLJ 395: 1982 BLJR 438: 1982 Pat LJR (SC) 55: 1982(2) SCWR 209:

1982(14) Lawyer 58.

For the penalties in relation to Rule 11 of the CCS (CCA) Rules are as

mentioned in items (i) to (ix), the authority competent to impose the penalty is the Head

of the Office. As a result, the Head of Office, namely, the Assistant Manager is the

competent authority to appoint. Once he is the competent authority to appoint, he is

equally, the competent authority to impose the penalty. Himachal Road Transport

Corporation v. Kewal Krishan, AIR 1997 SC 2667: 1997 (9) SCC 39: 1997 (2) SLR

580: 1997 (76) FLR 233: 1997 (2) SCJ 172: 1997 Lab IC 2652: 1998 (1) LLJ 1058:

1998 (1) SLJ 44: 1998 (3) LLN 24. As regards competent authority to issue charge

sheet, see Government of Tamil Nadu v. S. Vel Raj, AIR 1997 SC 1900: 1997 (2) SCC

708: 1997 (1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3)

LLJ 1; Inspector General of Police v. Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC

145: 1996 (6) JT 450: 1996 SCC (L&S) 433: 1996 (32) ATC 663: 1996 (2) SLR 470:

1996 (1) UJ 424: 1996 (74) FLR 2510: 1996 (2) LLN 515: 1997 (2) LLJ 191.

TERMINATION OF SERVICES

Explanation (viii)

Termination of the Services of —

(a) A Government servant appointed on probation; or

(b) A temporary Government servant; or

(c) A Government servant employed under an agreement.

S Y N O P S I S

Probationer

1. Probationer – meaning of ... .......................................................................................... 236

2. Probationer, Status of ..................................................................................................... 236

3. Probation, duration of ..................................................................................................... 236


4. Probationer, discharge of ................................................................................................ 236

5. Removal for misconduct or inefficiency ........................................................................ 237

6. Reversion by order simpliciter – Motive may be misconduct, negligence or

inefficiency..................................................................................................................... 238

7. Reversion after probationary period ... ........................................................................... 239

8. Reversion by way of punishment ................................................................................... 239

9. Reversion for not being fit for confirmation................................................................... 239

10. Reversion for unsuitability ............................................................................................. 239

11. Termination of probation ............................................................................................... 239

12. Termination of service according to rules ...................................................................... 240

13. Termination of service after expiry of probationary period ............................................ 240

14. Termination of service for unsatisfactory work .............................................................. 241

15. Termination of service for unsuitability .. ...................................................................... 242

16. Termination of service for medical unsuitability ............................................................ 242

17. Termination of service under terms of appointment .. .................................................... 244

18. Communication of reasons for termination .. ................................................................. 245

Termination of Service of Probationer or Temporary Government Servant

19. Termination of services of probationer or temporary Government servant: Application

of Art. 311 ... .................................................................................................................. 245

20. Termination of services of a probationer or a temporary Government servant –

Principles which can be deduced from the Supreme Court decisions ............................ 247

21. Form of order not decisive whether passed by way of punishment ... ............................ 248

22. Termination of service, order simpliciter ... ................................................................... 248

23. Appointment and termination, without approval .. ......................................................... 250

24. Termination of service under - Sub-rule (I) of rule 5 ... ................................................. 250

Termination of Services 25. According to service rules .............................................................................................. 250

26. Authority which can terminate service ... ....................................................................... 251

27. After 15 years service with stigma .. .............................................................................. 251

28. For not joining duty after transfer .. ............................................................................... 251

29. For absence or overstaying leave ... ............................................................................... 251

30. Juniors retained ... .......................................................................................................... 252

31. Termination of service on abolition of post ... ................................................................ 254

32. By authority subordinate to the appointing authority ... ................................................. 255

33. Termination by authority not competent .. ..................................................................... 255

34. On overall assessment of service record ... ..................................................................... 255

35. Services no longer required .. ......................................................................................... 255

36. With stigma .................................................................................................................... 256


37. Without stigma ............................................................................................................... 256

38. Service Terminated without Assigning Cause, Motive Behind is Irrelevant .................. 256

39. Reason, if Assigned must be Valid................................................................................. 256

40. At the Request of Civil Servant ...................................................................................... 256

41. By consent ...................................................................................................................... 257

42. For Misconduct, Negligence or as Penalty ..................................................................... 257

43. For not Passing Prescribed Examination ........................................................................ 257

44. For not being Selected by Selection Committee or Public Service Commission ........... 257

45. On Resignation ............................................................................................................... 257

46. After Preliminary Enquiry Held Ex Parte ..................................................................... 257

47. After Preliminary Enquiry : Notice to Show Cause not Required .................................. 258

48. After Enquiry to Ascertain Whether Fit for Service ....................................................... 258

49. After Full Scale Enquiry ................................................................................................ 258

50. Enquiry Withdrawn, Service Terminated ....................................................................... 258

51. Enquiry Quashed, Subsequently Service Terminated ..................................................... 258

52. Without Formal Enquiry ................................................................................................ 259

53. When under Suspension, Without Enquiry .................................................................... 259

54. Without Show Cause Notice Under Rules ..................................................................... 259

55. Without Show Cause Notice Under Terms of Appointment .......................................... 259

56. Termination of Service on Adverse Police Report ......................................................... 259

57. Termination of Service Forthwith : Whether Notice to be Issued with the Order of Pay260

58. Notice Sent by Registered Post, Avoiding of ................................................................. 260

59. Termination of Service by Way of Punishment ............................................................. 260

60. When Dismissal ............................................................................................................. 261

61. When Appointment Coterminous with Continuance of Post .......................................... 261

62. With Retrospective Effect .............................................................................................. 262

63. Termination of Service of Employee on Work Charged Establishment for Misconduct 262

64. Termination of Service of Employee on Contract, as Penalty ........................................ 262

65. Application of Article 311 where Service Terminated in Pursuance of Contract or

Rules .............................................................................................................................. 263

66. Appointment under Agreement : Appointee Holding Civil Post : Termination of

Service by Notice under Agreement: Void ..................................................................... 263

67. Before Expiry of Fixed Period ....................................................................................... 263

68. Termination of Tenure Post before Full Period .............................................................. 264

69. Termination of Service of an Employee of Government Company ............................... 264

70. Termination of Service under Article 310 (1) ................................................................ 265

71. Government Servants who Belong to Scheduled Castes and Scheduled Tribes have no

Special Protection Regarding Termination of Service ................................................... 266


1. Probationer, Meaning of — The term “probationer” is defined in Rule 2.15

of the “Supplementary Rules” as meaning “Government servant, employee on probation

in or against a substantive vacancy in the cadre of a department” and does not lay down

any conditions or the circumstances in which such a person may be confirmed or the

period of probation or the bar to extend the period. The term probationer in its ordinary

dictionary meaning connotes the employment either of a fresh entrant to service on tests

or of an existing officer to a higher post on test and is tantamount to suspension of final

appointment to an officer until a person temporarily appointed has, by his conduct

proved himself to be fit to be and the probation has been equated to “a period of

testing”. M.P. Pandey v. Union of India, 1972 (3) SLR 72.

2. Probationer, Status of — A probationer does not have a substantive status

though he might be considered to have attributes of such a status, which is not the same

thing as to have the status itself. Jagraj Singh v. State of Punjab, 1969 SLR 623 (FB).

3. Probation, duration of — The period of probation is a period of test during

which the work and conduct of an employee is under scrutiny. If on an assessment of

his work and conduct during this period it is found that he was not suitable for the post

it would be open to the employer to terminate his services. His services cannot be

equated with that of a permanent employee who, on account of his status, is entitled to

be retained in service and his services cannot be terminated abruptly without any notice

or plausible cause. This is based on the principle that a substantive appointment to a

permanent post in a public service confers substantive right to the post and the person

appointed on that post becomes entitled to hold a lien on the post. He gets the right to

continue on the post till he attains the age of superannuation or is dismissed or removed

from service for misconduct etc. after disciplinary proceedings in accordance with the

Rules at which he is given a fair and reasonable opportunity of being heard. He may

also come to lose the post on compulsory retirement. Life Insurance Corporation of

India v. Raghavendra Seshagiri Rao Kulkarni, AIR 1998 SC 327: 1997(8) SCC 461:

1997(77) FLR 782: 1997(5) SLR 774: 1998(2) LLJ 1161: 1998 Lab IC 411: 1998(1)

LLN 56: 1998(92) FJR 25.

In one case, as terms of appointment clearly indicated that even after expiry of

probation period, as employee can be continued in service as a temporary employee.

Period of such temporary engagement is not limited. The stand that though there was no

written confirmation, by conduct the employee was confirmed in service was held to be

clearly contrary to requirements which could not be accepted. Madan Mohan Sahu v.

Chairman-cum-Managing Director, Mahanadi Coal Fields Ltd., 1999(3) SLR 164 Ori (DB).

4. Probationer, Discharge of — The employer is entitled to engage the service

of a person on probation. During the period of probation, the suitability of the

recruit/appointee has to be seen. If his services are not satisfactory which means that he

is not suitable for the job, then the employer has a right to terminate the services as a

reason thereof. If the termination during probationary period is without any reason,

perhaps such an order would be sought to be challenged on the ground of being

arbitrary. Therefore, normally, services of an employee on probation would be

terminated, when he is found not to be suitable for the job for which he was engaged,

without assigning any reason. If the order on the face of it states that his services are


being terminated because his performance is not satisfactory, the employer runs the risk

of the allegation being made that the order itself casts a stigma. Normally, therefore, it

is preferred that the order itself does not mention the reason why the service are being

terminated. Krishnadevaraya Education Trust v. L.A. Balakrishna, AIR 2001 SC 625:

2002 SCC(L&S) 53: 2001(1) JT 617: 2001(1) SLR 635 (SC): 2001 Lab IC 642: 2001

AIRSCW 253: 2001 AIR Kant HCR 2152: 2001(1) Cur LR 534: 2001(2) LRI 1248.

The term of appointment permitting the employee to terminate the service of

the employee during the period of probation cannot be said to be illegal or unfair. When

a person is appointed on a specific condition that he will be on probation, the employer

has a right to adjudge the suitability of the employee in the light of his performance.

The employee is on trial. The employer has a right to inform an employee that his

performance shall be watched for a particular duration of time. If he does not come upto

the required standard, his services can be terminated. Held that no violation of any

principle of public policy was involved. The action was not violative of any rule.

Section 23 of the Contract Act is not even remotely attracted. Jasmer Singh v.

Chandigarh State Co-operative Bank Ltd., 1999(2) SLR 47 P&H (DB).

Where service of a probationer is terminated on the ground that his

performance was not found satisfactory during the period of probation, the termination

is not punitive in nature and the provisions of Article 311(2) of the Constitution need

not be followed. Where the services of the petitioner were terminated on the ground that

her performance during the second year of probation was not satisfactory and such a

termination cannot be held to be punitive or to cast any stigma so as to attract the

provisions of Article 311(2) of the Constitution. Aditi Choudhury (Smt) v. State of

Tripura, 1999(3) SLR 339 Gau.

Generally speaking when a probationer”s appointment is terminated it means

that the probationer is unfit for the job, whether by reason of misconduct or ineptitude,

whatever the language used in the termination order may be. Although strictly speaking,

the stigma is implicit in the termination, a simple termination is not stigmatic. A

termination order which explicitly states what is implicit in every order of termination

of a probationer”s appointment, is also not stigmatic. Parvanendra Narayan Verma v.

Sanjay Gandhi P.G.I. of Medical Sciences, AIR 2002 SC 23: 2002(1) SCC 520: 2001(9)

JT 420: 2002(1) LLJ 690: 2001(8) SLR 722 (SC): 2002 AIRSCW 4616: 2002 Lab IC

113: 2001 All LJ 2807: 2002(1) AllWC 42: 2002(100) FJR 64: 2002(92) FLR 349:

2001(1) LLJ 690: 2002(1) Mad LJ 151: 2002(2) Mah LR 374: 2002(1) Pat LJR 204:

2002 SCC(L&S) 170: 2002(1) SLJ 336.

An employer would however, have no power to terminate an employee during

the period of probation, unless of course such a right has been reserved whether under

the appointment order itself or by any relevant Rules/Regulations relating to

appointment probation and confirmation of appointees. R. Swaminathan v. Manipal

Academy of Higher Education, 2002(2) SLR 467 Kar.

5. Removal for Misconduct or Inefficiency — If a probationer is discharged

on the ground of misconduct, or inefficiency or for similar reasons without a proper

enquiry and without his getting a reasonable opportunity of showing cause against his

discharge it may in a given case amount to removal from service within the meaning of


Art. 311(2) of the Constitution. Shamsher Singh v. State of Punjab, 1974 (2) SLR 701:

AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831; State of Maharashtra v.

Veerappa R. Sabaji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 Lab

IC 1389: 1979 (2) SLR 527: 1979 SLJ 621; Nepal Singh v. State of U.P., (1980) 2 SCJ

179: AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980

SLJ 711: 1980 (2) SLR 108; Ajaya Mohanty v. Union of India, 1981 (1) SLJ 552: 1982

(2) SLR 681.

For termination of service see Avinash Nagra v. Navodaya Vidyalaya Samiti,

1997(2) SCC 534: 1996(10) JT 461: 1996(8) AD(Delhi) 529: 1997(1) SLR 270: 1997

(1) SLR 270 (SC).

6. Reversion by Order Simpliciter — The very fact that a person is a

probationer implies that he has to prove his worth and suitability for the higher post in

which he is officiating. If his work is not found to be satisfactory, he is liable to be

reverted to his original post even without assigning any reason. High Court of Madhya

Pradesh through Registrar v. Satya Narayan Jhavar, AIR 2001 SC 3234: 2001(7) SCC

161: 2001(6) JT 368: 2001 Lab IC 3281: 2001 AIRSCW 3112: 2002(1) BLJR 450:

2001(91) FLR 626: 2002(1) JLJR 40: 2002(1) Jab LJ 103: 2002(1) Pat LJR 25: 2001

SCC (L&S) 1087: 2001(3) SCJ 135: 2001(3) SLR 645: 2001(2) UJ 1281. See also

Wasim Beg v. State of U.P., AIR 1998 SC 1291: 1998(2) JT 354: 1998(2) SLR 174 (SC).

Motive of Reversion may be Misconduct, Negligence or Inefficiency —

“Motive” is the moving power which impels action for a definite result, or to put it

differently, “motive” is that which incites or stimulates a person to do an act. An order

terminating the service of an employee is an act done by the employer. What is that

factor which impelled the employer to take this action. If it was the factor of general

unsuitability of the employee for the post held by him, the action would be upheld in

law. If, however, there were allegations of serious misconduct against the employee and

a preliminary enquiry is held behind his back to ascertain the truth of those allegations

and a termination order is passed thereafter, the order, having regard to other

circumstances, would be founded on the allegations of misconduct which were found to

be true in the preliminary enquiry. Chandra Prakash Shahi v. State of U.P., AIR 2000

SC 1706: 2000(5) SCC 152: 2000(5) JT 181: 2000(3) LLN 21: 2000(2) SLR 772 (SC).


factor which influenced the authority to pass the order of reversion, such reversion

cannot be termed as penalty or punishment. Union of India v P.S. Bhatt 1981(2) SCC

761: AIR 1981 SC 957: 1981 Lab IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981

SCC (Lab) 460: 1981(2) SCJ 65: 1981(2) SCWR 88.

When the order terminating the service referred to other communications which

contained stigmatic observations, it was held that the in view of language of letters

findings were part of the foundation of the impugned order and it was not a case of

mere motive and therefore the order of termination was set aside. Dipti Prakash

Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, AIR 1999 SC

983: 1999(3) SCC 60: 1999(1) SLR 622: 1999(1) LLJ 1054: 1999(1) SCJ 415: 1999

Lab IC 1114: 1999(2) LLN 44: 1999(81) FLR 687: 2000(96) FJR 607.


7. Reversion After Probationary Period — Probationary period of respondent

was not extended and he was reverted to his substantive post. Order held valid. State of

Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089; Golak Nath Barman v. State of W.B.,

1974 SLJ 535.

8. Reversion by Way of Punishment — A probationer can be reverted during

the probationary period and even thereafter to his original post, if he is having no legal

right to the higher post. But if he is reverted to his original post by way of punishment,

the provisions of Art. 311 will apply. State of Bombay v. F.A. Abraham, AIR 1962 SC

794: (1962) 2 SCJ 168; Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711: (1963)

1 SCR 416; S.N.Nagarjulu v. Railway Board, 1981 (3) SLR 305: 1982 (2) SLJ 13; G.

Venugopal v. Director of Administration Appellate Authority, 1993 (4) SLR 81 (CAT

Hyderabad); Prem Singh Verma v. Union of India, 1993 (2) SLR 108 (CAT New

Delhi).

9. Reversion for not Being Fit for Confirmation — Respondent posted as

Tahsildar on probation. Inquiry started for the purpose of affording him an opportunity

to show cause why his probation should not be terminated forthwith. After considering

explanation, probation was terminated. It cannot be said that by terminating the

probation any penalty was imposed. Reversion is not as punishment. No violation of

Art. 311. State of U.P. v. Akbar Ali Khan, (1966) II SCWR 701: AIR 1966 SC 1842:

(1967) 2 SCJ 79.

In one case the employee was holding a temporary service and was on

probation an order of termination simpliciter was passed against him. As the service

records were found unsatisfactory, it was held that the termination order cannot be held

to be arbitrary and capricious. Tarakeswar Mahapatra v. Chairman, Haldia

Development Authority, 1999(2) SLR 754 Cal (DB).

Also see Allied Service Matters — Confirmation.

10. Reversion for Unsuitability — A reversion on the ground of unsuitability

is an action in accordance with the terms of which the officiating post is held not a

reduction in rank by way of punishment to which Art. 311 of the Constitution could be

attracted. Union of India v. R.S. Dhaba, (1969) 1 SCWR 922: 1969 Cur LJ 461; State of

Bombay v. F.A.Abraham, AIR 1962 SC 794: (1962) 2 Supp SCR 92; I.N.Saksena v.

State of M.P., (1967) 1 SCWR 665; Superintending Engineer v. B.B.Singh, 1975 Lab IC

1023: 1975 SLJ 600; H.Krishnamurthy v. State of Karnataka, 1982 Lab IC 397: 1981

(2) SLJ 590.

The authority may come to the conclusion that on account of inadequacy for

the job or for any temperamental or other object not involving moral turpitude, the

probationer is unsuitable for the job and hence she must be discharged. It would not

amount to punishment. Perpetua E. Rodrigues v. Goa Public Service Commission, Goa,

1999(3) SLR 667 Bom (DB).

11. Termination of Probation — Appellant State Government appraised

respondent of the grounds for holding an inquiry and gave him opportunity to show

cause why his probation be not terminated. Respondent submitted explanation.

Governor ordered for termination of probation and also ordered that respondent is not


considered for promotion for a period of seven years. After considering material of

respondent, Governor cancelled part of the order which related to stoppage of

promotion. Order terminating probation was upheld. U.P. Subordinate Revenue

Executive Service (Tahsildars) Rules, Rule 14, State of U.P. v. Akbar Ali Khan, (1966)

II SCWR 701: AIR 1966 SC 1842: 1966(3) SCR 821: (1967) 2 SCJ 79.

12. Termination of Service According to Rules — Termination of service of

a probationer according to rules is neither dismissal nor removal. Article 311 has no

application. Ranendra Chandra v. Union of India, AIR 1963 SC 1552: (1964) 2 SCR

135: (1964) 1 SCJ 578; State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1976

SLJ 583: 1976 (2) SLR 859: 1976 Lab IC 1647; Jai Singh v. State of Haryana, 1977 (2)

SLR 371 (FB). See also Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC

534: 1996(10) JT 461: 1996(8) AD(Delhi) 539: 1997 (1) SLR 270 (SC).

13. Termination of Service After Expiry of Probationary Period — It is

well settled that a person appointed on probation does not ordinarily get automatic

confirmation on the expiry of stipulated probationary period. After expiry of

probationary period he remains a probationer unless the appointment order contains

provisions for his automatic confirmation. His services can be terminated if he is

unsuitable. Giovanola v. Industrial Tribunal, Calicut, AIR 1969 Kerala 313; State of

U.P. v. Tilak Singh, 1975 Lab IC 1021: 1975 SLJ 94: 1976 (1) SLR 129.

Where even though there is a provision in the rules for initial probation and

extension thereof, a maximum period for such extension is also provided beyond which

it is not permissible to extend probation. Karnataka State Road Transport Corporation

v. S. Manjunath, AIR 2000 SC 2070: 2000(5) SCC 250: 2000(3) SLJ 270: 2000(4) SLR

539: 2000 Lab IC 1986: 2000(3) LLN 86: 2002(1) LLJ 910.

The Constitution Bench of Supreme Court in State of Punjab v. Dharma Singh,

AIR 1968 SC 1210, while distinguishing the other line of cases held that the

presumption about continuation, beyond the period of probation, as a probationer stood

negatived by the fixation of a maximum time limit for the extension of probation.

Consequently, in such cases the termination after expiry of the maximum period upto

which probation could be extended was held to be invalid, inasmuch as the officer

concerned must be deemed to have been confirmed.

Where on a plain grammatical meaning being given to the words used in the

Rules, does not provide for a deemed confirmation on expiry of the maximum period of

probation, and on the other hand it contemplates a positive order of confirmation to be

passed by the Appropriate Authority, if the Authority concerned is satisfied about the

fitness of the probationer for confirmation, and if the probationer has passed the

departmental examination, as prescribed. It was held that mere continuance of the

probationer after considering his case for confirmation during the period of probation

and finding him unsuitable for confirmation by the decision of appointing authority by

no stretch of imagination can be construed to be a confirmation by implication. High

Court of Madhya Pradesh v. Satya Narayan Jhavar, AIR 2001 SC 3234: 2001(6) JT

368: 2001(7) SCC 161: 2001(3) SCJ 135


In one case the Petitioner was permanent resident of Tehsil Naraingarh. His

name was registered with the Employment Exchange at Naraingarh. He got his name

transferred from the Employment Exchange, Naraingarh to the Employment Exchange,

Chhachhrauli. At that time there was no objection raised at either end. Not only that,

when the occasion arose, the Employment Exchange, Chhachhrauli sponsored his name.

The petitioner has given his permanent address of Naraingarh but mentioned that he

was registered with the Employment Exchange, Chhachhrauli. Even at that time, there

was no objection from any side and the petitioner was selected. Held that it is not fair

on the part of respondents now to assert that the petitioner has indulged in using unfair

means. The petitioner had stated correct facts. It was for the respondent to raise

objection if any at the appropriate time but they did not do so and instead allowed the

petitioner to continue and complete his probation period of two years. It is too late in

the day for the respondents now to assert that the petitioner”s recommendation from the

Employment Exchange, Chhachhrauli was unfair. In fact, it would be unfair if now the

appointment of the petitioner to a class IV post is quashed. Karan Singh v. State of

Haryana, 2002(5) SLR 277 (SC).

An employee promoted to higher post on probation which period could not be

extended for more than two years. After expiry of two years the authority failed to take

decision to confirm employee or to revert him. Decision taken 5 years held to be not

within reasonable time and it was held that the employee was deemed to have been

confirmed. State of Punjab v. Nazar Singh, 2002(2) SLR 384 P&H.

14. Termination of Service for Unsatisfactory Work — The services of a

probationer can be terminated before the expiry of probationary period if his work is

unsatisfactory or he is not fit for permanent employment. Parshottam Lal Dhingra v.

Union of India, AIR 1958 SC 36: 1958 SCR 828: 1958 SCJ 217; State of Bihar v.

G.K.Prasad, AIR 1960 SC 689: 1960(1) LLJ 577; Collector and District Magistrate,

Varanasi v. Mataru Ram, 1975 (2) SLR 605. Unsatisfactory performance of the official

may have been the motive but not the basis of the termination order, the order was

simpliciter and was not by way of punishment and no penal consequences visited him as

laid down in Dhingra”s case (supra), order not illegal. State of Maharashtra v

V.G.Koppar, AIR 1981 Bom 131; Mahindergarh Central Co-operative Bank v.

Mahender Pal, 1982 (1) SLR 317.

Where order of termination was passed simply because the employee”s

performance was not found satisfactory and he was informed about it and the order of

termination was not stigmatic, it was held that order of termination was proper.

Devender Arora v. Management of Albert and Devid Limited, 2003(2) SLR 56 Del.

Reliance was placed upon Pavanendra Narayan Verma v. Sanjay Gandhi PGT of

Medical Sciences, 2001 (8) SLR 722 SC while distinguishing V.P.Ahuja v. State of

Punjab, 2002 (2) SLR 1 SC.

The Punjab and Haryana High Court has however held that such termination of

probationer on the ground of unsatisfactory work is retrenchment. Punjab State Co-

operative Supply & Marketing Federation v. Presiding Officer, Labour Court, 2003 (2)

SLR 208 P&H. See also Jagtar Singh v. State of Punjab, 2003 (2) SLR 617.


15. Termination of Service for Unsuitability — Order did not cast any stigma

on appellant”s character or integrity nor did it visit him with any civil consequences.

Art. 311 is not attracted. It is immaterial that the order was preceded by an informal

enquiry with a view for ascertaining whether he should be retained in service. Ram

Gopal Chaturvedi v. State of M.P., AIR 1970 SC 158: 1970(1) SCR 472: 1969(2) SCC

240: (1970) 1 SCJ 257: 1969 SLR 429; Dr D.K. Gupta v. Union of India, 1977 (9) SLR

692: 1978 SLJ 277; Oil & Natural Gas Commission v. Dr. Md. S.Iskandar Ali, AIR

1980 SC 1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 SLJ 591:

1980 (2) SLR 792. The decision to terminate the services of a temporary Government

servant on ground of unsuitability in relation to the post held by him is not by way of

punishment and no stigma is attached to him by reason of the termination of his service.

Commodore, Commanding Southern Naval Area v. V.N. Rajan, 1981(3) SCR 165: AIR

1981 SC 965: 1981(2) SCC 636: 1981 Lab IC 605: 1981(1) SLR 656: 1981 SCC(Lab)

428: 1981(1) SCWR 388: 1981(2) SCJ 85; Lakshmaiah v. K.S.R.T.C., 1982 (2) SLJ 49:

1982 (2) SLR 170.

In one case charge sheet was issued to Probationer and summary inquiry was

held in the matter. The Inquiry Officer finding nothing more than inability of the

employee to meet the requirement of the post. Order of termination passed immediately

thereafter was held to be not stigmatic. Parvanendra Narayan Verma v. Sanjay Gandhi

P.G.I. of Medical Sciences, AIR 2002 SC 23: 2002(1) SCC 520: 2001(9) JT 420:

2002(1) LLJ 690: 2001(8) SLR 722 (SC): 2001 AIRSCW 4616: 2001 All LJ 2807:

2002(92) FLR 349: 2002(100) FJR 64: 2002(1) Mad LJ 151: 2002(2) Mah LJ 151:

2002(1) Pat LJR 204: 2002 SCC(L&S) 170: 2002(1) SLJ 336.

16. Termination of Service for Medical Unsuitability — Termination of

service on medical ground does not attract Art. 311. Jagannath Ghosh v. D.F.O., 1976

(1) SLR 243. The petitioner was performing and continues to perform his duties as

Assistant Lineman for a continuous period of five years. It could not be disputed that 25

per cent disability suffered by the petitioner had in any manner, affected him in

discharging his duties as Assistant Lineman. Held that the petitioner could not be given

a marching order. Baldev Singh v. Haryana State Electricity Board, 1999(3) SLR 608

P&H (DB).

After enactment of Persons with Disabilies (Equal Opportunities, Protection of

Rights and Full Participation) Act, 1995 especially section 47 thereof termination of a

person who acquires medical disability is not permissible. It has been held that other

legislations must yield to this legislation and termination of service is not proper. Union

of India v. Hasan Khan, 2003 (3) SLR 144 Raj.

Under Section 2 (k) of Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995, the term establishment is defined

which reads as under:

2(k) “establishment” means a corporation established by or under a Central,

Provincial or State Act, or an authority or a body owned or controlled or aided

by the Government or a local authority or a government company as defined in

Section 617 of the Companies Act, 1956 (1 of 1956) and includes departments

of a Government;


Similarly section 47 of the aforesaid Act of 1995 provides as under:

47. Non-discrimination in government employment.— (1) No establishment

shall dispense with, or reduce in rank, an employee who acquires a disability

during his service:

Provided that, if an employee, after acquiring disability is not suitable for the

post he was holding, could be shifted to some other post with the same pay

scale and service benefits:

Provided further if it is not possible to adjust the employee against any post, he

may be kept on a supernumerary post until a suitable post is available or he

attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his

disability:

Provided that the appropriate Government may, having regard to the type of

work carried on in any establishment, by notification and subject to such

conditions, if any, as may be specified in such notification, exempt any

establishment from the provisions of this section.

After referring to the aforesaid provisions the Supreme Court (in Kunal Singh

v. Union of India, 2003 (4) SCC 524) has made following observations:

“The need for a comprehensive legislation for safeguarding the rights of

persons with disabilities and enabling them to enjoy equal opportunities and to

help them to fully participate in national life was felt for a long time. To realise

the objective that people with disabilities should have equal opportunities and

keeping their hopes and aspirations.”

“Section 47, which falls in Chapter VIII, deals with a employee, who is already

in service and acquires a disability during his service. It must be borne in mind

that Section 2 of the Act has given distinct and different definitions of

“disability” and “person with disability”. It is well settled that in the same

enactment if two distinct definitions are given defining a word/expression, they

must be understood accordingly in terms of the definitions. It must be

remembered that a person does not acquire or suffer disability by choice. An

employee, who acquires disability during his service, is sought to be protected

under Section 47 of the Act specifically. Such employee, acquiring disability, if

not protected, would not only suffer himself, but possibly all those who depend

on him would also suffer. The very frame and contents of Section 47 clearly

indicate its mandatory nature. The very opening part of the section reads “no

establishment shall dispense with, or reduce in rank, an employee who acquires

a disability during his service”. The section further provided that if an

employee after acquiring disability is not suitable for the post he was holding,

could be shifted to some other post with the same pay scale and service

benefits; if it is not possible to adjust the employee against any post he will be

kept on a supernumerary post until a suitable post is available or he attains the

age of superannuation, whichever is earlier. Added to this no promotion shall


be denied to a person merely on the ground of his disability as is evident from

sub-section (2) of Section 47. Section 47 contains a clear directive that the

employer shall not dispense with or reduce in rank an employee who acquires a

disability during the service. In construing a provision of a social beneficial

enactment that too dealing with disabled persons intended to give them equal

opportunities, protection of rights and full participation, the view that advances

the object of the Act and serves its purpose must be preferred to the one which

obstructs the object and paralyses the purpose of the Act. Language of Section

47 is plain and certain casting statutory obligation on the employee to protect

an employee acquiring disability during service.

Merely because under Rule 38 of the CCS(Pension) Rules, 1972, the appellant

got invalidity pension is no ground to deny the protection mandatorily made

available to the appellant under Section 47 of the Act. Once it is held that the

appellant has acquired disability during his service and if found not suitable for

the post he was holding, he could be shifted to some other post with same pay

scale and service benefits; if it was not possible to adjust him against any post,

he could be kept on a supernumerary post until a suitable post was available or

he attains the age of superannuation, whichever is earlier.”

With these observations it set aside the termination of services of the

Government employee and has laid down that no such termination can be effected and

full effect must be given to the provisions of Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995. It may be added that this

question of compliance of the Act of 1995 was raised for the first time before the

Supreme Court but it was entertained by the Supreme Court as it was a pure question of

law and relief was granted.

17. Termination of Service Under Terms of Appointment — Under the

terms of appointment the services of a probationer can be terminated at any time

without any notice and without any cause. He is not entitled to protection under Art.

311(2). Union Territory of Tripura v. Gopal Chandra, AIR 1963 SC 601: 1963 Supp(1)

SCR 266: 1963(1) Cr LJ 491: (1964) 2 SCJ 293; Ranendra Chandra v. Union of India,

AIR 1963 SC 1552: 1964(2) SCR 135: 1964(1) SCJ 578: (1964) 2 SCR 135; State of

Assam v. Ranjeet Chakravarty, 1975 Lab IC 116; Kartar Singh v. State of Punjab, 1982

(1) SLR 28.

Where the appointment was on contractual basis and services were terminated

on the expiry of period of contract, it was held that the termination was neither the

retrenchment nor was illegal. District Animal Husbandry Officer v. Judge Labour

Court, 2003 (1) SLR 786 Raj; Termination after completion of project is also held to be

valid. Surendra Kumar Sharma v. Vikas Adhikari, 2003 (3) SLR 601 SC.

An employer would have no power to terminate an employee during the period

of probation, unless of course such a right has been reserved whether under the

appointment order itself or by any relevant Rules/Regulations relating to appointment

probation and confirmation of appointees. R. Swaminathan v. Manipal Academy of

Higher Education, 2002(2) SLR 467 Kar. Termination of service in breach of terms of

appointment is bad. Ishwer Chandar v. State of Haryana,1982 (1) SLR 253.


18. Communication of Reasons for Termination — The order of termination

of service mentioned under various reasons which had impelled the Managing

Committee to terminate the services. It was held that mere communication of a

resolution in which reasons are recorded does not amount to casting a stigma on the

probationer. Kassi Agrawal Samaj v. Regional Inspectress of Girl Schools, 1970 SLJ

1239. The decision was agreed to in Managing Committee, Model Inter College v.

Indra Pal Gupta, 1973 SLJ 713.

For termination paying one month salary see Avinash Nagra v. Navodaya

Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1997 (1) SLR 270 (SC).

If the reasons are disclosed then it is said that the order was passed by way of

punishment. If the reasons are not disclosed then the agent is that it is arbitrary, mala

fide and capricious. The rule laid down by Supreme Court in most of the cases is that

you have to look to the order on the face of it and find whether it casts any stigma on

the employee. State of Maharashtra v. Veerappa R. Saboji, AIR 1980 SC 42: 1980(1)

SCR 551: 1979(4) SCC 466: 1979 Lab IC 1389: 1979 (2) SLR 527: 1979 SLJ 621.

If the order on the face of it states that his services are being terminated

because his performance is not satisfactory, the employer runs the risk of the allegation

being made that the order itself casts a stigma. If such an order is challenged, the

employer will have to indicate the grounds on which the services of a probationer were

terminated. Mere fact that in response to the challenge the employer states that the

services were not satisfactory would not ipso facto mean that the service of the

probationer were being terminated by way of punishment. Krishnadevaraya Education

Trust v. L.A. Balakrishna, AIR 2001 SC 625: 2002 SCC(L&S) 53: 2001(1) JT 617:

2001(1) SLR 635 (SC): 2001 Lab IC 642: 2001 AIRSCW 253: 2001 AIR Kant HCR

2152: 2001(1) Cur LR 534: 2001(2) LRI 1248. Similarly where order of termination

was stated to have been passed on account of “omissions and commissions”, it was held

that the order of termination without complying with the principles of natural justice is

bad in law. Bijender Kumar v. State of Haryana, 2003 (1) SLR 35 P&H.

Termination of Service of Probationer or Temporary Government Servant

19. Termination of Services of Probationer or Temporary Government

Servant: Application of Article 311 — The Constitutional position has been made

crystal clear by a bench of seven Judges of the Supreme Court in Shamsher Singh v.

State of Punjab, (1975) 1 SCR 814: AIR 1974 SC 2192: 1974(2) SCC 831: 1974 (2)

SLR 701, where the learned Chief Justice after an exhaustive review of the decision of

Supreme Court observed:—

No abstract proposition can be laid down that where the services of a

probationer are terminated without saying anything more in the order of termination

than that the services are terminated it can never amount to a punishment in the facts

and circumstances of the case. If a probationer is discharged on the ground of

misconduct, or inefficiency or for similar reason without a proper enquiry and without

his getting a reasonable opportunity or showing cause against his discharge it may in a

given case amount to removal from service within the meaning of Art. 311(2) of

the Constitution.


Before a probationer is confirmed the authority concerned is under an

obligation to consider whether the work of the probationer is satisfactory or whether he

is suitable for the post. In the absence of any rules governing a probationer in this

respect the authority may come to the conclusion that on account of inadequacy for the

job or for any temperamental or other object not involving moral turpitude the

probationer is unsuitable for the job and hence must be discharged. No punishment is

involved in this. The authority may in some cases be of the view that the conduct of the

probationer may result in dismissal or removal on an inquiry. But in those cases the

authority may not hold an inquiry and may simply discharge the probationer with a

view to giving him a chance to make good in other walks of life without a stigma at the

time of termination of probation. If, on the other hand, the probationer is faced with an

enquiry or charges of misconduct or inefficiency or corruption, and if his services are

terminated without following the provisions of Art. 311(2), he can claim protection.

The facts of holding an inquiry is not always conclusive. What is decisive is whether

the order is really by way of punishment. A probationer whose terms of service

provided that it could be terminated without any notice and without any causes being

assigned could not claim the protection under Art. 311(2). See Dhananjay v. Chief

Executive officer, Zilla Parishad, Jalna, 2003 (2) SLR 298 SC.

There is no real conflict between the various decisions of Supreme Court in

applying the principles involved in applying Art. 311(2). Even where there appears to

be some conflict, it would vanish when the ratio decidendi of each case is correctly

understood. Even in cases where a High Court finds any conflict between the views

expressed by larger and smaller benches of Supreme Court, it cannot disregard or skirt

the views expressed by the larger benches. State of U.P. v. Ram Chandra Trivedi, AIR

1976 SC 2547: 1977(1) SCR 462: 1976(4) SCC 52: 1976 Lab IC 1647: 1976 SLJ 583:

1976(2) SLR 859; Oil & Natural Gas Commission v. Dr. Md. S. Iskander Ali, AIR 1980

SC 1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 (2) SLR 792:

1980 SLJ 591.

R.S. Pathak, J. speaking for the Supreme Court in Nepal Singh v. State of U.P.,

AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab 1C 747: 1980 SLJ

711: 1980 (2) SLR 108, said, “It is now well settled that an order terminating the

services of a temporary Government servant and ex-facie innocuous in that it does not

cast any stigma on the Government servant or visits him with penal consequences must

be regarded as effecting a termination simpliciter, but if it is discovered on the basis of

material adduced that although innocent in its terms the order was passed in fact with a

view to punishing the Government servant, it is a punitive order which can be passed

only after complying with Art. 311(2) of the Constitution”. Also see Union of India v.

P.S. Bhatt, 1981(2) SCC 761: AIR 1981 SC 957: 1981 Lab IC 504: 1981(1) SLJ 212:

1981(1) SLR 370: 1981 SCC (Lab) 460: 1981(2) SCJ 65: 1981(2) SCWR 88;

Commander, Commanding Southern Naval Area v. V.N. Rajan, AIR 1981 SC 965:

1981(3) SCR 165: 1981(2) SCC 636: 1981 (1) SLR 656: 1981 (2) SLJ 48; Mathew P.

Thomas v. Kerala State Civil Supply Corporation Ltd., 2003 (3) SLR 150 SC.

The protection under Art. 311 is equally available to temporary as well as

permanent Government servants. State of Maharashtra v. V.G.Koppar, AIR 1981 Bom

131; Padam Prasad Sharma v. S.N.T., 1982 (1) SLJ 431.


Termination within the period of probation in terms of a clause of appointment

letter authorising termination by way of three months” notice on either side was held to

be not invalid. S. Ramachandran v. Hyderabad Allwyn Metal Works Ltd, 1995 Supp (3)

SCC 674: 1996 SCC(L&S) 105: 1996(2) LLJ 741: 1996(2) LLN 879. However

administrative direction to this effect, held to be arbitrary. Reserve Bank of India v. S.

Jayarajan, 1995 Supp (4) SCC 584: 1996 SCC(L&S) 203: 1996(32) ATC 145: 1996(2)

LLJ 735.

20. Termination of Services of a Probationer or a Temporary Government

Servant : Principles which can be Deduced from the Supreme Court Decisions —(i) A temporary employee”s service can be dispensed with under the terms of contract

of employment (rules of his employment) although his juniors may be retained if it can

be shown that the juniors were not similarly placed as the person whose service has

been dispensed with on account of misconduct or inefficiency or since he was standing

as a class by himself.

(ii) In such case (as above), however, it would be incumbent upon the authority

to satisfy the court that persons junior to the probationer, whose services have been

terminated, do not stand at par with or have better service record than, the person

impugning the order of termination.

(iii) There can be no hard and fast rule nor any abstract proposition of law for

the purpose of determining as to whether the order of termination simpliciter or by way

of punishment is correct. It would depend upon the facts and circumstances of each case

as to whether it can be deduced that the order of termination is by way of penalty or

not.

(iv) The motive behind the order of termination is not always germane or

relevant for the purpose of determining as to whether an order innocuous in form can be

dubbed as being an order of termination by way of punishment. But the substance and

not merely the form of the order is relevant. Subhash Chandra Chaudhary, Jamuna

Ram v. Bihar State Warehousing Corporation, 1980 (2) SLR 760, see State of Punjab v.

Sukhraj Bahadur, AIR 1968 SC 1089: 1968 SLR 701; State of U.P. v. Saughar Singh,

AIR 1974 SC 423: 1974(2) SCR 335: 1974(1) SCC 218: 1974 SLJ 474: 1974 (1) SLR

435; State of Maharashtra v. Veerappa R. Saboji, AIR 1980 SC 42: 1980(1) SCR 551:

1979(4) SCC 466: 1979 Lab IC 1389: 1979 (2) SLR 527: 1979 SLJ 621; Nepal Singh v.

State of U.P., AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab IC

747: 1980 SLJ 711: 1980 (2) SLR 108; Oil & Natural Gas Commission v. Dr. Md. S.

Iskandar Ali, AIR 1980 SC 1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 SLJ 591:

1980 (2) SLR 792; Commodore Commanding Southern Naval Area v. V.N. Rajan, AIR

1981 SC 965:1981(3) SCR 165: 1981(2) SCC 636: 1981 Lab IC 605: 1981 (2) SLJ 48:

1981 (2) SLR 656; Somnath Sahu v. State of Orissa, 1981 (2) SLR 550; T.D.

Subramanian v. Union of India, (1981) 1 SCJ 197: AIR 1982 SC 776: 1981(4) SCC

150: 1982 Lab IC 442: 1982 (2) SLJ 20.

(v) “Motive” is the moving power which impels action for a definite result, or

to put it differently, “motive” is that which incites or stimulates a person to do an act.

An order terminating the service of an employee is an act done by the employer. What

is that factor which impelled the employer to take this action. If it was the factor of


general unsuitability of the employee for the post held by him, the action would be

upheld in law. If, however, there were allegations of serious misconduct against the

employee and a preliminary enquiry is held behind his back to ascertain the truth of

those allegations and a termination order is passed thereafter, the order, having regard

to other circumstances, would be founded on the allegations of misconduct which were

found to be true in the preliminary enquiry. Chandra Prakash Shahi v. State of U.P.,

AIR 2000 SC 1706: 2000(5) SCC 152: 2000(5) JT 181: 2000(3) LLN 21: 2000(2) SLR

772 (SC); See also Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd.,

2003 (3) SLR 150 (SC).

21. Form of Order not Decisive Whether Passed by Way of Punishment — The form of the order is not decisive as to whether the order is by way of punishment.

Even an innocuously worded order terminating the service may in the facts and

circumstances of the case establish that it was passed by way of punishment and is in

infraction of provisions of Art. 311. Shamsher Singh v. State of Punjab, 1974 (2) SLR

701: AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831; State of Punjab v.

Prakash Singh, AIR 1975 SC 1096: 1975 SLJ 499: 1975 (2) SLR 85; State of

Maharashtra v. Veerappa R. Saboji, AIR 1980 SC 42: 1979 Lab IC 1389: 1979 (2) SLR

527: 1979 SLJ 621; Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980 Lab IC 747:

1980 SLJ 711: 1980 (2) SLR 108; Ajaya Mohanty v. Union of India, 1981 (1) SLR 785:

(1981) 2 SLJ 552; Muralidhar Yeshwant Mayenkar v. Union of India, 1982 (1) SLJ 699:

1982 (2) SLR 482: 1983 Lab IC 62; Mathew P. Thomas v. Kerala State Civil Supply

Corporation Ltd., 2003 (3) SLR 150 SC.

The form of order is not conclusive of its nature and it might be a cloak of

deceive for an order founded on misconduct. S.R. Tiwari v. District Board of Agra, AIR

1964 SC 1680: 1964(2) SCJ 300: (1964) 3 SCR 55. It may be noted that an order which

is innocuous on the face and does not contain any imputation of misconduct is a

circumstance or a piece of evidence for finding whether it was made by way of

punishment or administrative routine. But the entirety of circumstances preceding or

attendant on the impugned order must be examined and the overriding test will always

be whether the misconduct is a mere motive or is the very foundation of the order. State

of Bihar v. Shiv Bhikshuk, (1970) II SCWR 606; 1970 SLR 63: AIR 1971 SC 1011:

1971(2) SCR 191: 1970(2) SCC 871; Union of India v. R.S. Dhaba, (1969) 1 SCWR

922: 1969 Cur LJ 461; R.K. Bhat v. Union of India, (1970) II SCWR 667: 1970 Cur LJ

924; Sarju Singh v. Additional District Magistrate, 1973 (2) SLR 90; State of U.P. v.

Bhoop Singh Verma, AIR 1979 SC 684: 1979(2) SCR 1126: 1979(2) SCC 111: 1979 (2)

SLR 28; Nepal Singh v. State of U.P., (1980) 2 SCJ 179: AIR 1980 SC 1459: 1980(3)

SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108.

22. Termination of Service Order Simpliciter — No reasons given for

termination of services. Order is one simpliciter and not by way of punishment. State of

Nagaland v. G. Vasantha, AIR 1970 SC 537: 1970 SLR 637: 1970 Lab IC 419;

Parshuram v. Union of India, 1974 SLJ 626; Oil & Natural Gas Commission v. Dr. Md.

S. Iskandar Ali, 1980 SLJ 591: 1980 (2) SLR 792: AIR 1980 SC 1242; Union of India

v. P.S. Bhatt, (1981) 2 SCJ 65: 1981 (1) SLJ 212 (SC): 1981 (1) SLR 370: AIR 1981

SC 957; Murlidhar Yeshwant Mayenkar v. Union of India, 1982 (1) SLJ 699: 1982 (2)

SLR 482: 1983 Lab IC 62.


If the inquiry officer held no sittings, did not take evidence nor record any

conclusions and if at that stage the inquiry was dropped and a simple order of

termination was, passed, the same would not be punitive. Radhey Shyam Gupta v. U.P.

State Agro Industries Corporation Ltd., AIR 1999 SC 609: 1999 (1) SLR 44 (SC): 1999

(2) SCC 21: 1998 (8) JT 585: 1999 (1) LLJ 432: 1999 (2) LLN 57: 1999 (1) FLR 475:

1999 (95) FJR 93: 1999 (3) SLJ 100; See also Shailaja Shivajirao Patil v. President

Hon. Khasdar UGS Sanstha, 2002(1) SLR 371 (SC): 2002(1) JT 431; relying upon

Pavenendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences, AIR 2002

SC 23: 2001(1) SCC 520: 2001(9) JT 420 (SC): 2001 AIRSCW 4616: 2001 All LJ

2807: 2002(1) All MR 302: 2002(1) All WC 42: 2002(1) Andh LD 81: 2002(100) FJR

64: 2002(92) FLR 349: 2002(1) Mad LJ 151: 2002(2) Mah LR 374: 2002(1) Pat LJR

204: 2002 SCC (L&S) 170: 2002(2) SLJ 336: 2001(8) SLR 722.

(i) The Court has power to look into entirety of circumstances preceding or

attendant on the order of termination. K.H. Phadnis v. State of Maharashtra, AIR 1971

SC 998: 1971 Supp SCR 118: 1971(1) SCC 790: 1971 (2) SLR 345: (1973) 1 SCJ 420;

State of Bihar v. Shiva Bhikshuk Mishra, AIR 1971 SC 1011: 1971(2) SCR 191:

1970(2) SCC 871: (1971) 2 SCJ 68: 1970 SLR 863; Jagdish Prasad v. State of U.P.

(1971) 2 SCJ 409: AIR 1971 SC 1224: 1971(2) SCR 583: 1970(3) SCC 631: 1970 SLR 938;

A.M. Rode v Principal, Government Degree College, 1973 SLJ 710: 1973 (2) SLR 574.

(ii) Where the order is ex facie an order of termination of service simpliciter, it

does not cast any stigma on the respondent nor does it visit him with evil consequences

not it is founded on misconduct, in the circumstances the respondent could not invite

the Court to go into the motive behind the order. The Court would not delve into

Secretariat files to discover whether some kind of stigma could be inferred on such

research. State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1977(1) SCR 462:

1976(4) SCC 52: 1976 Lab IC 1647: 1976 SLJ 583: 1976 (2) SLR 859.

(iii) Where a charge of unfair discrimination is levelled with specificity, or

improper motives are imputed to the authority making the impugned order of

termination of service, it is the duty of authority to dispel that charge by disclosing to

the Court the reason or motive which impelled it to take the impugned action. Manager,

Govt. Press v. D.B. Belliappa, AIR 1979 SC 429: 1979(2) SCR 458: 1979(1) SCC 477:

1979 Lab IC 146: 1979 SLJ 233: 1979 (1) SLR 351. Also see State of Maharashtra v.

Veerappa R. Saboji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 Lab

IC 1389: 1979 (2) SLR 527: 1979 SLJ 621; Nepal Singh v. State of U.P., AIR 1980 SC

1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2)

SLR 108.

(iv) In Comm. Commanding, Southern Naval Area v. V.N. Rajan, AIR 1981 SC

965: 1981(3) SCR 165: 1981(2) SCC 636: (1981) 2 SCJ 85: 1981 (1) SLR 656: 1981 (2)

SLJ 48, the Supreme Court looked into the file and found that the impugned order was

not by way of punishment and no stigma attached to the respondent.

(v) Having gone through the file relating to the termination of service of the

petitioner, High Court came to the conclusion that the impugned order is founded on

allegations of misconduct and negligence of duty. Held, the provisions of Art. 311 of

the Constitution were clearly attached and it was not open to the authorities to have


terminated the service by giving the order a cover of termination simpliciter. Ajaya

Mohanty v. Union of India, 1981 (1) SLR 785: 1981 (1) SLJ 552; Bhavansinh Raysinhji

Rathod v. State Transport Corporation, 1981 (2) SLR 622.

(vi) The order may be a motive and not a foundation as a ground for dismissal.

During the period of probation, the authorities are entitled to assess the suitability of

the candidates and if it is found that the candidate is not suitable to remain in service

they are entitled to record a finding of unsatisfactory performance of the work and

duties during the period of probation. Under these circumstances, necessarily the

appointing authority has to look into the performance of the work and duties during the

period of probation and if they record a finding that during that probation period, the

work and performance of the duties were unsatisfactory, they are entitled to terminate

the service in terms of the letter of appointment without conducting any enquiry. That

does not amount to any stigma. Kunwar Arun Kumar v. Uttar Pradesh Electronics

Corporation Ltd., 1996 Supp (8) SCR 19: 1997(2) SCC 191: 1997(1) LLN 570: 1997(1)

SLR 136: 1997(1) SLJ 234: 1997(91) FJR 55: 1997(3) LLJ 791.

Also see Notes 18 and 53.

23. Appointment and Termination without Approval — Respondent was

appointed by District Council without approval of Governor. District Council

terminated his services without approval of Governor. Held, the respondent cannot

complain that his termination by the very Council without Governor”s sanction is

invalid. H. Lyngdoh v. Cromlyn Lyngdoh, AIR 1971 SC 1110: 1971(3) SCR 903:

1971(1) SCC 754: 1971 (2) SLR 330 (SC).

24. Termination of Service Under Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 — Sub-rule (1) of Rule 5 provides:—

“(1) (a) The services of a temporary Government servant who is not in quasi-

permanent service shall be liable to termination at any time by a notice in writing given

either by the Government servant to the appointing authority or by the appointing

authority to the Government servant;

(b) The period of such notice shall be one month:

Provided that the service of any such Government servant may be terminated

forthwith and on such termination the Government servant shall be entitled to claim a

sum equivalent to the amount of his pay plus allowances for the period of notice at the

same rates at which he was drawing them immediately before the termination of the

service, or as the case may be, for the period by which such notice falls short of one

month.”

Termination of Services

25. According to Service Rules — The services of a temporary Government

servant can be terminated in accordance with the rules applicable to temporary

government servants. Where the order terminating the service on the face of it flows

from a right to terminate service under the rules of service and it does not cast any

stigma upon the employee and is made on an overall assessment of service record and it

is found that the employee is not fit to be confirmed, the provisions of Art. 311 are not


at all attracted. State of U. P. v. Tilak Singh, 1975 SLJ 94: 1975 Lab IC 1021: 1976 (1)

SLR 129; State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1977(1) SCR 462:

1976(2) SCC 52: 1976 SLJ 583: 1976(2) SLR 859: 1976 Lab IC 1647. See also Avinash

Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1996(8)

AD(Delhi) 539: 1997(1) SLR 270: 1997 (1) SLR 270 (SC); Coir Board, Ernakulam,

Cochin v. Indira Devi, AIR 1998 SC 2801: 1998(3) SCC 259: 1998(2) JT 332: (1998) 1

SCJ 405.

26. Authority which can Terminate Service — (i) The dismissal by an

authority other than the appointing authority by virtue of any delegation was

permissible in law provided the dismissal was not by an authority subordinate to the

authority which appointed a civil servant. State of U.P. v. Ram Nareshlal, AIR 1970 SC

1263: 1970(3) SCC 173: 1970 Lab IC 1063: 1970 SLR 819; Krishna Kumar v.

Divisional Asst. Electrical Engineer, 1979 SLJ 532: 1979 (2) SLR 291: AIR 1979 SC

1912: 1980(1) SCR 50: 1979(4) SCC 289: 1979 Lab IC 1314: (1980) 1 SCJ 183.

(ii) In relation to a temporary Government servant not holding a specified post,

the termination of service is to be made by the authority which appointed him. Om

Prakash Gupta Swadheen v. Union of India, AIR 1975 SC 1265: 1976(1) SCC 594:

1975 Lab IC 813: 1975 (2) SLR 226: 1975 SLJ 675; Mohinder Singh v. State of H.P.,

1976 (1) SLR 555; Ramanand Singh v. State of Bihar, 1982 (1) SLR 693 (SC).

Termination of service of an employee after 8 years of service by an authority

who below the rank of appointing authority was held bad in law and order of

termination was set aside. Mahendra Singh v. State of U.P., 2003 (3) SLR 707 All.

27. After 15 Years Service with Stigma — Chief Minister made statement in

Legislative Assembly, in answer to a question, “It is true that having put in 15 years of

temporary service he is entitled to pension but on the other hand since his service was

not satisfactory he can be removed on one month”s notice. On re-consideration of the

matter the Government feels that he should be served show cause notice. Therefore, the

Government reconsidered the matter.” Held, the Chief Minister”s statement did cast

stigma on his character. Order terminating service and not allowing pension quashed.

Madan Mohan Prasad v. State of Bihar, AIR 1973 SC 1133: 1973(3) SCC 166: 1973

Lab IC 918: 1973 (1) SLR 630: 1973 SLJ 349.

28. For not Joining Duty After Transfer — Appellant, a temporary

employee, was transferred. He did not immediately join duty at new place and applied

for leave. Even after expiry of leave he did not join duty but applied for leave. Without

proceeding to take disciplinary action, his service was terminated. Order held violative

of Art. 311(2). N. Yellaih Swamy v. Director of Industries, 1971 (1) SLR 730 (AP).

Similar view was taken in B.M. Tripathi v State of U.P., 1971 (2) SLR 738 (All): AIR

1971 All 346; Krishanlal Dhirajlal Vyas v. Oil & Natural Gas Commission, 1981 (1)

SLJ 124.

29. For Absence or Overstaying Leave — Punishment without show cause is

illegal that being in contravention of Art. 311 of Constitution. M.M.Joseph v. Union of

India, 1979 (3) SLR 434; State of Rajasthan v. Mangal Singh, 1981 (1) SLJ 173.


Absence without leave constitutes misconduct and it is not open to the

employer to terminate service without notice and inquiry or at any rate without

complying with the minimum principle of natural justice. L.Robert D”Souza v.

Executive Engineer, Southern Railway, AIR 1982 SC 854: 1982(3) SCR 251: 1982(1)

SCC 645: 1982 (1) SLJ 319: 1982 (1) SLR 864: 1982 Lab IC 811: 1982 (2) SCJ 29.

The Supreme Court in the case of Jaishankar v State of Rajasthan, AIR 1966

SC 492: 1966(1) SCR 825: 1966(2) LLJ 140, held that the removal of a Government

servant from service for over-staying his leave without complying with the provisions

of Art. 311 of the Constitution was illegal even though it was sanctioned by the service

regulations. That ratio is equally applicable to temporary Government servants. Ram

Kishore Pandey v. Union of India, 1982 Lab IC 281: 1982 (2) SLR 602 (All).

The unduly long absence from duty without sanctioned leave in given cases

may result in voluntary presumption of abandonment of service and in such case no

element of punishment is involved which may require adherence to principles of natural

justice. Anand Bharti v. State of Rajasthan, 2002(3) SLR 60 Raj (DB). See also Punjab

Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour

Court, U.T., Chandigarh, 2001(1) SLR 467 P&H (DB), Punjab State v. Hari Singh,

2001(1) SLR 151 P&H and Gopal Clothing Company Ltd. v. Presiding Officer, 2001(1)

SLR 142 (DB).

30. Juniors Retained — A full bench of Punjab and Haryana High Court in

Y.K. Bhatia v. State of Haryana, 1977 (1) SLR 85, held that the termination of the

services of a temporary Government employee does not offend Article 16 (1) of the

Constitution merely because his juniors are retained in service and that the reversion of

a Government employee temporarily promoted to a higher post does not also offend

Article 16 (1) merely because his juniors are reverted. Of course, it will be open to the

persons effected in individual cases to establish discriminatory treatment which cannot

be explained except on the basis of “malice in law” or “malice in fact” without any

suggestion of “malice in law” or “malice in fact” there can be no question of invoking

the aid of Article 16 (1) of the Constitution against an order of termination of service or

reversion of a temporary employee merely because juniors are continuing.

The service of respondent had been terminated without assigning any reason

albeit in accordance with the conditions of his service, while three employees, similarly

situated junior to him in the same temporary cadre had been retained. A charge of

hostile discrimination had been levelled with sufficient particularity against the

appellant. The Supreme Court in Manager, Government Branch Press v. D. B.

Belliappa, AIR 1979 SC 429: 1979(2) SCR 458: 1979(1) SCC 477: 1979 Lab IC 146:

1979 SLJ 233: 1979 (1) SLR 351, held that of course, there is always some reason or

cause for terminating the service of a temporary Government servant. It is not necessary

to state reason in the order of termination communicated to the employee concerned.

But where there is a specific charge of arbitrary discrimination, or some hostile motive

is attributed to the authority terminating the service, it is incumbent on the authority

making the impugned order to explain the same by disclosing the reason for impugned

action. Since the appellant withheld that information from the Court, the conclusion of

the court was that the respondent was picked out for the impugned action, whimsically


without any special reason which could put him in a class separate from that of his three

juniors, who had been retained in service. The protection under Articles 14 and 16(i)

will be available to such a temporary Government servant.

After the judgment of Supreme Court in D.B. Belliappa”s 1979(2) SCR 458:

1979(1) SCC 477: AIR 1979 SC 429: 1979 Lab IC 146: 1979(1) SLR 351: 1979

SCC(Lab) 39: 1979 RLR 209: 1979 BBCJ (SC) 11: 1978 SLC 290: 1978(2) SCWR 359:

1978 SLWR 454 a case was referred to a Division Bench of Punjab and Haryana High

Court in Krishan Chand Goyal v. Punjab State, 1980 (2) SLR 623 in view of the earlier

Full Bench judgment in Y.K. Bhatia”s case referred to (supra). After considering

various judgments of the Supreme Court and D.B. Belliappa”s case (supra) it has been

held by the Division Bench:—

(i) The fact that the service of temporary Government servant is terminated,

either in accordance with the conditions of appointment or service rules, while his

juniors are retained in service per se would not prove unequal treatment nor would it be

violative of Articles 14 and 16 of the Constitution.

(ii) If in a given case the temporary Government servant is able to show that

the simple order of termination of service in accordance with the terms of appointment

or service rules was actuated by improper motive or on charge of unfair discrimination

specifying the facts in that regard and those facts are either not controverted or stand

proved, then that simple order of termination of services may be quashed by a Court of

law even if he was the junior most.

Where the plantiff”s case was on the ground that since persons junior to him

were kept in service on the abolition of the post, the order of termination was arbitrary

and violative of Article 16 of the Constitution but he never pleaded any other ground of

unfair indiscrimination or improper motive for the termination of his services, it was

held that his suit was liable to be dismissed. Union of India v. Prakash Lal, 1980 (2)

SLR 596 (P&H).

Division Bench of Patna High Court in Subhash Chandra Chaudhary and

Jamuna Ram v. Bihar State Warehousing Corporation, 1980 (2) SLR 760, deduced the

following principles:—

(i) A temporary employee”s service can be dispensed with under the terms of

contract of employment although his juniors may be retained if it can be shown that the

juniors were not similarly placed as the person whose service has been dispensed with

on account of misconduct or inefficiency or since he was standing as a class by himself.

(ii) In such cases (as above), however, it would be incumbent upon the

authority to satisfy the Court that persons junior to the person, whose services have

been terminated, do not stand at par with or have better service record than, the person

impugning the order of termination.

(iii) There can be no hard and fast rule nor any abstract proposition of law for

the purpose of determining as to whether the order of termination is a termination

simpliciter or by way of punishment. It would depend upon the facts and circumstances


of each case as to whether it can be deduced that the order of termination is by way of

penalty or not.

(iv) The motive behind the order of termination is not always germane or

relevant for the purpose of determining as to whether an order innocuous in form can be

dubbed as being an order of termination by way of punishment. Actually the substance

and not merely the form of the order is relevant.

See also Dhananjay v. Chief Executive officer, Zilla Parishad, Jalna, 2003 (2)

SLR 298 Ajaya Mohanty v. Union of India, 1981 (1) SCR 785: 1981 (2) SCR 681 1981

(1) SLJ 552; Dr. S.C. Kaushik v. Union of India, 1981 (1) SLR 214.

31. Termination of Service on Abolition of Post — Whether a post should be

retained or abolished is essentially a matter for the Government to decide. As long as

such decision of the Government is taken in good faith, the same cannot be set aside by

the Court. It is not open to the Court to go behind the wisdom of the decision and

substitute its own opinion for that of the Government on the point as to whether a post

should or should not be abolished. In case it is found on consideration of the facts of a

case that the abolition of the post was only a device to terminate the service of an

employee, the abolition of the post would suffer from a serious infirmity and would be

liable to be set aside. The termination of a post in good faith and consequent

termination of the services of the incumbent of that post would not attract Art. 311.

State of Haryana v. Des Raj, 1976 (1) SLR 191: 1976 SLJ 222: AIR 1976 SC 1199:

1976(2) SCR 1034: 1976(2) SCC 844: 1976(1) SLR 191; Ali Mohd. v. Chairman,

T.A.C., 1980 (3) SLR 546; J.P. Bansal v. State of Rajasthan, 2003 (3) SLR 50 SC.

If that were to be so in the cases of a regular employee holding a permanent

post, a fortiori, it must be the same in the case of a temporary employee holding a

temporary post. Joshi Narsing Rao v. District and Sessions Judge, 1980 (3) SLR 161.

The appellant was suspended and served with charge sheet. However before

this a notice was served abolishing all posts in the deptt. Disciplinary proceedings did

not proceed further and after about two years on the representation of the appellant,

Government ordered that the disciplinary action against him would be treated as closed.

Held, the appellant was employed in a deptt. which has since been abolished and with

the abolition of the deptt., his claim to hold any post in the deptt. must fail. Gurdeep

Singh v. Union of India, 1982(1) SCC 505: AIR 1982 SC 1176: 1982 Lab IC 1489:

1982(2) LLJ 184: 1982(45) FLR 330: 1982(2) SLJ 380: 1982 SCC (Lab) 113: 1982 LS

(SC) 54.

It is no doubt true that Art. 38 and Art. 43 of the Constitution insist that the

state should endeavour to find sufficient work for people so that they may put their

capacity to work into economic use and earn a fairly good living. But these Articles do

not mean that everybody should be provided with a job in the Civil Service of the State,

and if a person is provided with one, he should not be asked to leave it even for a just

cause. The question whether a person who ceases to be a Government servant according

to law, should be rehabilitated by giving an alternative employment, as the law stands

today, a matter of policy on which the Court has no voice. K. Rajindran v. State of


Tamil Nadu, AIR 1982 SC 1107: 1982(3) SCR 628: 1982(2) SCC 273: 1982 Lab IC

876: 1982 (1) SLJ 604: 1982 (2) SLR 196.

32. By Authority Subordinate to the Appointing Authority — The

respondent was appointed and confirmed by the Chairman of the Board of Control. The

Board of Control abolished the post. Chairman, Board of Administration served the

notice of termination on the respondent terminating his employment at the expiry of

three months. Chairman of the Board of Administration is under the control of the

Board of Control which is a superior authority. The notice of termination was vitiated

because it was issued by an authority which was subordinate to the authority which

appointed the respondent. Union of India v. Vigian Bhushan Aggarwal, 1983 (1) SLJ 77.

33. Termination by Authority not Competent — Termination of services by

a person who is not a competent authority is illegal. Madan Lal Datta v. State of

Haryana, (1983) 1 SLR 548 (P & H).

Under the rules made under the Punjab Agricultural Produce Market Act, it is

the State Agricultural Marketing Board which is competent to terminate the services of

its employees. Hence termination of services by the Secretary of the Board is not valid.

A person whose services are illegally terminated is entitled to reinstatement and also to

back wages. Balwant Singh v. State of Haryana, (1983) 1 SLR 273, 274, Paras 5 and 6

(P&H).

34. On Overall Assessment of Service Record — Termination of service on

an overall assessment of service record, when it is found that the temporary

Government servant is not fit to be confirmed in service, does not amount to

punishment of dismissal or removal under Art. 311. State of U. P. v. Tilak Singh, 1975

SLJ 94: 1975 Lab IC 1021: 1976 (1) SLR 129; R.K. Gupta v. State of U.P., 1977 (2)

SLR 78.

Merely because the adverse remarks have been communicated and the adverse

remarks related to indiscipline and quarrelsome nature of the petitioner, it cannot be

contended that the termination was by way of punishment. M. Rahtinavelu v. R.C.

Khanna, 1980 (2) SLR 38.

35. Services no Longer Required — The services of petitioner were

terminated as these were no longer required. Services were not terminated by way of

punishment. Provisions of Art. 311 not attracted (as per Chet Ram Thakur, J). Roop Lal

v. State, 1972 Simla LJ 387: AIR 1973 HP 14; Malti Heera v. State of Punjab, 1973

SLJ 416: 1973 (1) SLR 769; State of U.P. v. Bhoop Singh Verma, AIR 1979 SC 684:

1979(2) SCR 1126: 1979(2) SCC 111: 1979 (2) SLR 28; State of Maharashtra v. V.G.

Koppar, AIR 1981 Bom 131; Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980(3)

SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108:

(1980) 2 SCJ 179.

Termination of services on mere involvement in a criminal case would be too

hazardous and slander a consideration which can justify such a decision. Pradyuman

Singh Indrasinh v. State of Gujarat, 1982 (2) SLR 650: 1983 Lab IC 123. See also

Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461:

1996(8) AD(Delhi) 529: 1997 (1) SLR 270 (SC).


36. With Stigma — Where the impugned order while terminating the services

of the petitioner has described him as “at present under suspension”, on the face of it,

the impugned order leaves the stigma on the petitioner that he is a suspended officer,

and any future employer may reasonably think that the petitioner must have been

suspended in service on some serious allegations and may refuse employment to the

petitioner on that ground alone. The impugned order, though passed under Rule 5(1) of

the Temporary Service Rules, 1965, carried an indelible stigma and order held violative

of Art. 311(2) of the Constitution. N.B.Chakraborty v. Union of India, AIR 1970 A&N 98.

A temporary Government servant is entitled to the protection under Art. 311(2)

of Constitution where the termination of his service involves a stigma. Comm

Commanding, Southern Naval Area, Cochin v. V.N. Rajan, AIR 1981 SC 965: 1981(3)

SCR 213: 1981(2) SCC 663: 1981 (1) SLR 656: 1981 (2) SLJ 48: (1981) 2 SCJ 85.

37. Without Stigma — Appellant was a temporary Government servant and

was not in quasi-permanent service. His services were terminated without any stigma.

Termination does not amount to punishment. Parshottam Lal Dhingra v. Union of

India, AIR 1958 SC 36: 1958 SCR 828; Ram Gopal Chaturvedi v. State of M.P., (1969)

1 SCWR 1115: AIR 1970 SC 158: 1967(3) SCR 848: 1967 SLR 582; Mohd. Sharif v.

State of J & K, AIR 1970 J&K 156; Dr. B.K. Gupta v. Union of India, 1978 SLJ 277:

1978 (1) SLR 312: Commodore Commanding, Southern Naval Area v. V.N. Rajan, AIR

1981 SC 965: 1981(3) SCR 165: 1981(2) SCC 636: 1981 (1) SLR 656: 1981 (2) SLJ 48:

(1981) 2 SCJ 85.

38. Service Terminated without Assigning Cause, Motive Behind is Irrelevant — When the services of a temporary servant are terminated without

assigning any cause and under the rules, real motive behind termination is irrelevant.

State of Bihar v. Gopi Kishore Prasad, AIR 1960 SC 689; Bairagi Ram v. State of U.P.,

AIR 1966 All 92; Dhananjai Singh v. State of Bihar, AIR 1967 Pat 404; State of Punjab

v. Sukhraj Bahadur, AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701: 1968 SLR

701; Malti Heera v. State of Punjab, 1973 SLJ 416.


factor which influenced the authority to terminate the service of the employee on

probation, such termination cannot be termed as penalty or punishment. Oil and Natural

Gas Commission v. Dr. Md. S. Iskandar Ali, AIR 1980 SC 1242: 1980(3) SCR 603:

1980(3) SCC 428: 1980 Lab IC 698: 1980 SLJ 591: 1980 (2) SLR 792; Union of India

v. P.S. Bhat, (1981) 2 SCJ 165: 1981 (1) SLJ 213 (SC): 1981 (1) SLR 370.

39. Reason, if Assigned must be Valid — The Government can terminate the

services of a temporary employee by giving him one month”s notice without assigning

any reason but where reason is assigned, it must be shown to be a valid reason. Jagdish

Chand Pant v. State of U.P., 1973 SLJ 451: 1974 (2) SLR 208. See also Avinash Nagra

v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1996(8) AD(Delhi)

529: 1997(1) SLR 270: 1997 (1) SLR 270 (SC).

40. At the Request of Civil Servant — We know of no principle of law which

prohibits termination of service of a Government servant by the Government at the


Government servants” request. Mohd. Kutubuddin v. State of A.P., (1969) II SCWR

856: 1969 SLR 819.

41. By Consent — It was open to an employer to terminate the services of the

employee by mutual consent. For a termination of service by mutual consent, neither

the provisions of Article 311 nor the principles of natural justice are attracted. Mohd.

Kutubuddin v. State of A.P., (1969) II SCWR 856: 1969 SLR 819.

42. For Misconduct, Negligence or as Penalty — The services of a permanent

or temporary Government servant or of an employee on contract cannot be terminated

for misconduct, negligence or as penalty unless prescribed procedure is followed.

Madan Gopal v. State of Punjab, AIR 1963 SC 531: 1963(3) SCR 716: 1964(1) LLJ 68:

(1963) 2 SCJ 185; P.L. Dhingra v. Union of India, AIR 1958 SC 36: 1958 SCR 828:

1958 SCJ 217: 1958(1) LLJ 544; Principal, Medical College v. M.J. Vincent, AIR 1970

Mad 424; Ananta Charan Mahapatra v. Inspector of Post Offices, AIR 1980 Orissa 165

(FB); State of Maharashtra v. Veerappa R. Saboji, AIR 1980 SC 42: 1980(1) SCR 551:

1979(4) SCC 466: 1979 (2) SLR 527: 1979 SLJ 621; Ajaya Mohanty v. Union of India,

1981 (1) SLJ 552: 1981 (1) SLR 785; Murlidhar Yashwant Mayenkar v. Union of India,

1982 (1) SLJ 699: 1982 (2) SLR 483: 1983 Lab IC 62. For termination of temporary

teacher for misconduct see Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC

534: 1996(10) JT 461: 1996(8) AD(Delhi) 529: 1997(1) SLR 270: 1997 (1) SLR 270 (SC).

43. For not Passing Prescribed Examination — Government is entitled to

terminate the services of temporary employee for not passing the prescribed

examination. State of Rajasthan v. Fateh Chand, AIR 1970 SC 1099: 1970 Lab IC 870:

1970 SLR 55, however, see Tripta Dhir v. State of Punjab, 1982 (2) SLR 258.

44. For not being Selected by Selection Committee or Public Service Commission — An official who has acquired experience but has not been successful at

the selection is not to be replaced by a fresh recruit. While terminating the services of

those not selected the principle of “last come first go” be applied to those who are

similarly situated and the services of the junior must be terminated first. Dr. S.C.

Kaushik v. Union of India, 1981 (1) SLR 214.

45. On Resignation — Acceptance of resignation does not amount to

termination of appointment for any misconduct or as a measure of penalty. Raj Kumar

v. Union of India, (1968) II SCWR 914: AIR 1969 SC 180: 1968(3) SCR 857: 1968

SLR 730: 1969 Lab IC 310.

46. After Preliminary Enquiry Held Ex Parte — When preliminary enquiry

is held against a temporary civil servant ex parte and his services are terminated

without mention of any stigma, the order is simple order of discharge and Article 311

(2) will not apply. Madan Gopal v. State of Punjab, AIR 1963 SC 531: 1963(3) SCR

716: (1963) 2 SCJ 185; Champak Lal Chiman Lal Shah v. Union of India, AIR 1964 SC

1854: 1964(5) SCR 190; State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089:

1968(3) SCR 234: 1968 SLR 701; Dr. Gopal Krishna K. Salekar v. Union of India,

1970 SLR 705: 1970 Lab IC 361; State of U.P. v. Bhoop Singh Verma, AIR 1979 SC

684: 1979(2) SCR 1126: 1979(2) SCC 111: 1979 (2) SLR 28, Madan Lal v. State of

Punjab, 1981 (3) SLR 524.


47. After Preliminary Enquiry : Notice to Show Cause not Required — No

charge sheet served on the delinquent officer but an enquiry was made in the matter.

Service terminated. Officer was not entitled to reasonable opportunity to show cause

against the termination within meaning of Article 311 (2). State of U.P. v. Abdul

Khaliq, (1962) I SCWR 1086: 1969 SLR 458, See also Dhananjay v. Chief Executive

officer, Zilla Parishad, Jalna, 2003 (2) SLR 298 SC.

48. After Enquiry to Ascertain Whether Fit for Service — An order of

termination of service in unexceptionable form preceded by an enquiry launched by the

superior authorities only to ascertain whether the public servant should be retained in

service, does not attract the operation of Article 311. State of Punjab v. Sukh Raj

Bahadur, AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701: 1968 Cur LJ 687; Ram

Gopal Chaturvedi v. State of M.P., (1969) I SCWR 1115: AIR 1970 SC 158: 1970(1)

SCR 472: 1969(2) SCC 240: 1969 SLR 429; Yesh Paul Vohra v. Union of India, 1969

Cur LJ 109: 1969 SLR 160; Bishan Lal Gupta v. State of Haryana, AIR 1978 SC 363:

1978(2) SCR 513: 1978(1) SCC 202: 1978 SLJ 220: 1978 (1) SLR 404; Oil and Natural

Gas Commission v. Dr. Md. S. Iskandar Ali, AIR 1980 SC 1242: 1980(3) SCR 603:

1980(3) SCC 428: 1980 Lab IC 698: 1980 (2) SLR 792: 1980 SLJ 591; Shefali Sarkar

v. Divisional Engineer, Telegraphs, 1981 (2) SLR 284.

49. After Full Scale Enquiry — If there be full-scale departmental enquiry i.e.

an enquiry officer is appointed, a charge sheet submitted, explanation called for and

considered, any order of termination of service made thereafter will attract the

operation of Article 311. State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089:

1968(3) SCR 234: 1968 SLR 701: 1968 Cur LJ 687.

50. Enquiry Withdrawn, Service Terminated — Enquiry held. Enquiry

officer submitted report. Government ordered withdrawal of enquiry and terminated

services. Order cannot be said by way of punishment. State of Punjab v. Parsa Singh

Teji, AIR 1967 Punj 138; Yeshpaul Vohra v. Union of India, 1969 Cur LJ 109: 1969

SLR 160; Prasan Kumar Sadangi v. State of Orissa, 1974 SLJ 667. See also Avinash

Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1996(8)

AD(Delhi) 529: 1997(1) SLR 270: 1997 (1) SLR 270 (SC); Dhananjay v. Chief

Executive officer, Zilla Parishad, Jalna, 2003 (2) SLR 298 SC.

Where the charge sheet was withdrawn after about two years and on the same

date a fresh charge-sheet was served which was withdrawn after more than five years

and two months after the withdrawal of charge-sheet. Service of the petitioner was

terminated. Held, from the sequence of events, one is reasonably entitled to draw the

conclusion that the petitioner”s services were terminated on the ground of misconduct

although the charges had been formally withdrawn. Dasarathi Lal Sharma v. Union of

India, 1977 (1) SLR 672.

51. Enquiry Quashed, Subsequently Service Terminated — Enquiry quashed

as incompetent. Subsequently services were terminated as “no more required”. Not

proved by evidence that the impugned order was intended by way of punishment.

Termination upheld. Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980(3) SCR

613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 (2) SLR 108: 1980 SLJ 711.


52. Without Formal Enquiry — Order of termination was preceded by an

informal ex parte inquiry against temporary Government servant”s conduct. Order not

passed by way of punishment and the provisions of Art. 311 were not attracted.

Champak Lal Chimanlal Shah v. Union of India, AIR 1964 SC 1854: (1964) 5 SCR

190; Ram Gopal Chaturvedi v. State of M.P., AIR 1970 SC 158: 1970(1) SCR 472:

1969(2) SCC 240: (1969) 1 SCWR 1115; Malti Heera (Smt) v. State of Punjab, 1973

SLJ 416: 1973 (1) SLR 769; State of U.P. v. Bhoop Singh Verma, AIR 1979 SC 684:

1979(2) SCR 1126: 1979(2) SCC 111: 1979 (2) SLR 28.

The petitioner submitted reply to charge sheet and there after his services were

terminated. Order quashed, the order being without following procedure and the

provisions of Art. 311. Balraj Kumar Murria v. State of Punjab, 1982 (1) SLR 355.

53. When under Suspension, Without Enquiry — If a Government servant is

suspended and his services are terminated without holding any inquiry against him,

such termination would amount to punishment which will attract the provisions of Art.

311. Union of India v. Gian Singh Kadian, 1970 DLT 293: AIR 1970 Delhi 185: 1970

SLR 563 But suspension itself is not indicative of any stigma or predetermined motive

for termination. Dhananjay v. Chief Executive officer, Zilla Parishad, Jalna, 2003 (2)

SLR 298 SC.

54. Without Show Cause Notice Under Rules — Appellant was a temporary

Government servant. The Government had the right to terminate his services under

rules without issuing any notice to the appellant to show cause against the proposed

action. Ram Gopal Chaturvedi v. State of M.P., (1969) 1 SCWR 1115: AIR 1970 SC

158: 1970(1) SCR 472: 1969(2) SCC 240: 1969 SLR 429; Shefali Sarkar v. Divisional

Engineer, Telegraphs, 1981 (2) SLR 284.

55. Without Show Cause Notice Under Terms of Appointment — In the

case of appointment on temporary basis a servant who is so appointed does not acquire

any substantive right to the post, even though the post itself may be permanent and it is

an implied term of such appointment that it may be terminable at any time and without

notice. A temporary Government servant does not become a permanent Government

servant unless he acquires that capacity by force of any rule or he is declared or

appointed as a permanent servant. Madhya Pradesh Hasta Shilpa Vikas Nagam Ltd. v.

Devendra Kumar Jain, 1994 Supp (6) SCR 344: 1995(1) SCC 638: 1995(1) SLR 272:

1995(29) ATC 159: 1995(2) SLJ 70: 1995 Lab IC 1365: 1995(1) LLN 185: 1995(70)

FLR 330.

Where the respondent admitted that his appointment was subjected to the

condition that his services were terminable without any notice and the impugned order

of termination was not passed by way of any punishment, it was held that he cannot

invoke the provisions of Art. 311. State of Nagaland v. G. Vasantha, AIR 1970 SC 537:

1970 Lab IC 419: 1970 SLR 637; State of Assam v. Ranjit Chakravarti, 1975 Lab IC 116.

56. Termination of Service on Adverse Police Report — Termination of

service on certain vague unconfirmed confidential police reports is illegal and void.

Hardit Singh v. State of Punjab, 1977 (2) SLR 749 (P&H). The appointment of the

respondent was “subject to verification of his character and antecedents by police.” The


report of police verification merely stated that the respondent was unsuitable for

employment under the Government. The respondent protested that there was no basis

for such report. Held, in the facts and circumstances of this case, no prejudice would be

caused to the State authorities if the gist or the extract of the report so far as the same is

against the respondent is made known, and he is given an opportunity to make

representation, if any, against such report on the basis of subjective facts and data. State

of West Bengal v. Madan Mohan Bag, 1977 SLJ 677; Kalluri Vasayya v. Supdt. of Post

Offices, 1980 (2) SLR 433: 1982 Lab IC 1143.

Also see Rules 8 and 9, Note 62.

57. Termination of Service Forthwith : Whether Notice to be Issued with

the Order of Pay — The rule does not say that the pay should be given in cash or

cheque at the time of the notice is issued. Supreme Court decisions in Senior

Superintendent, R.M.S. v. R.V.Gopinath, AIR 1972 SC 1487: 1972(3) SCR 530: 1973(3)

SCC 867: (1973) 1 SCJ 28: 1972 SLR 390; Raj Kumar v. Union of India, 1975 (1) SLR

1: 1975 SLJ 86 no longer good law in view of amendment to proviso to Rule 5(1) of

CCS (Temporary Service) Rules, 1965. Raj Kumar v. Union of India, AIR 1975 SC

1116: 1975(3) SCR 963: 1975(4) SCC 13: 1975 SLJ 615: 1975 (1) SLR 774: 1975 Lab

IC 669; Ramesh Chandra Singh v. Union of India, 1981 (2) SLR 267.

58. Notice sent by Registered Post, Avoiding of — Notice terminating service

was sent to officer by registered post at the leave address but the service was

deliberately avoided. It may be treated effective service. Nilendu Bhusan Chakravarty

v. Union of India, 1975 (1) SLR 149.

59. Termination of Service by Way of Punishment — Services of a

temporary servant cannot be terminated by way of punishment without complying with

the provisions of Art. 311. Union of India v. P.K. More, AIR 1962 SC 630: 1961(2) LLJ

427: 1961(3) FLR 323: 1961-62(21) FJR 5; Sukhbans Singh v. State of Punjab, AIR

1962 SC 1711: 1963(1) SCR 416: 1963(1) LLJ 671; Malti Heera v. State of Punjab,

1973 SLJ 416.

In Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3)

SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108, R.S. Pathak, J. observed:

“It is now well settled law that an order terminating the service of a temporary

Government servant and ex facie innocuous is that it does not cast any stigma on the

Government servant or visits him with penal consequences must be regarded as

effecting a termination simpliciter, but if it is discovered on the basis of material

adduced that although innocent in its terms the order was passed in fact with a view to

punishing the Government servant, it is a punitive order which can be passed only after

complying with Art. 311(2) of the Constitution. The scope of the enquiry called for in

such a case has been outlined by one of us in State of Maharashtra v. Veerappa R.

Saboji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 Lab IC 1389: 1979

(2) SLR 527: 1979 SLJ 621. But the question which calls for determination in all such

cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an

order is not passed by way of punishment, and is merely an order of termination

simpliciter, if the material against the Government servant on which the superior

authority has acted, constitutes the motive and not the foundation for the order. The


application of the test is not always easy. In each case it is necessary to examine the

entire range of facts carefully and consider whether in the light of those facts the

superior authority intended to punish the Government servant or, having regard to his

character, conduct and suitability in relation to the post held by him. It was intended

simply to terminate his service. The function of the Court is to discover the nature of

the order by attempting to ascertain what was the motivating consideration in the mind

of the authority which prompted the order.” See also, Ajaya Mohanty v. Union of India,

1981 (1) SLJ 552: 1981 (1) SLR 785: 1981 (2) SLR 681; Murlidhar Yeshwant

Mayenkar v. Union of India, 1983 Lab IC 62: 1982 (1) SLJ 699: 1982 (2) SLR 482;

Padam Prasad Sharma v. S.N.T., 1982 (1) SLJ 431.

60. When Dismissal — Whether termination amounts to dismissal depends on

the circumstances and the facts of each case. Substance of order has to be looked into.

Ved Prakash Vohra v. State of Punjab, AIR 1965 Punj 28; Jagdish Mitter v. Union of

India, AIR 1964 SC 449: 1964(1) LLJ 418; Dinkar Keshav Bedekar v. State of

Maharashtra, 1970 Lab IC 139 (Bombay). A civil servant was put off duty on the

ground that allegations of misconduct against him were under inquiry. Hardly six weeks

thereafter his services were terminated. The order of termination did not specify the

ground upon which the order was based and prima facie it was innocuous one. The

impugned order of termination virtually amounted to dismissal and could not have been

passed in the absence of an appropriate disciplinary proceeding. Ananta Charan

Mahapatra v. Inspector of Post Offices, AIR 1980 Orissa 165 (FB); Padam Prasad

Sharma v. S.N.T., 1982 (1) SLJ 431.

61. When Appointment Coterminous with Continuance of Post — State had

no power to terminate the services of respondent when post itself was continuing. If any

action by way of disciplinary proceeding was being taken, then State should have

complied with Art. 311(2) of the Constitution. State of Haryana v. Rajender Sareen,

AIR 1972 SC 1004: 1972(1) SCC 267: 1972 SLR 112: 1972 Lab IC 546: (1972) 2 SCJ 604.













SC 923: 1999(2) SCC 317: 1999(1) JT 278: 1999(1) SLR 636 (SC).

Therefore termination on completion of project itself when contractual

employment and the posts came to an end is not liable to challenge. Surendra Kumar

Sharma v. Vikas Adhikari, 2003 (3) SLR 601 SC.


62. With Retrospective Effect — Order discharging the services from the date

of order with super-added direction that the order should operate retrospectively as

from anterior date. Even if the super-added part is invalid, it does not affect the other

part. Gujarat Mineral Development Corp. v. P.H. Brahmbhatt, 1974 SLJ 272. An order

of termination of service, as is well known, takes effect from the date of

communication. The petitioner”s services could not have been terminated after he had

superannuated from his service. Kanti Bhusan Naha v. W.B.S.E., 1999(1) SLR 308 Cal.

63. Termination of Service of Employee on Work Charged Establishment for Misconduct — The termination of service of temporary employee on work-charged

establishment for misconduct without following the procedure laid down in Part VI of

CCS (CCA) Rules and complying with the provisions of Art. 311 of the Constitution is

invalid and liable to be quashed. Murlidhar Yeshwant Mayenkar v. Union of India, 1982

(1) SLJ 699: 1982 (2) SLR 482: 1983 Lab IC 62.

64. Termination of Service of Employee on Contract, as Penalty —Unless a

contrary intention appears from the contract, a power to appoint should include a power

to terminate the appointment, including termination of the person appointed by his

compulsory retirement in accordance with the terms and conditions of his service. The

fundamental principle underlies Section 16 of the General Clauses Act which reads

as under:

16. Power to appoint to include power to suspend or dismiss.—Where,

by any Central Act or Regulation, a power to make any

appointment is conferred, then, unless a different intention

appears, the authority having for the time being power to make the

appointment shall also have power to suspend or dismiss any

person appointed whether by itself or any authority in exercise of

that power.

Relying on this provision it has been held that the power to appoint carries with

it the power to terminate the appointment. S.R. Tiwari v. District Board, Agra, 1964(3)

SCR 55: AIR 1964 SC 1680: 1964(2) SCJ 300: 1966(13) FLR 104; State of Tamil Nadu

v. M.N. Sundarajan, 1980 (3) SLR 451: 1981(1) SLJ 36. But the services of an

employee on contract cannot be terminated for misconduct, negligence or as penalty

unless prescribed procedure is followed. Madan Gopal v. State of Punjab, AIR 1963 SC

531: (1963) 3 SCR 716: 1964(1) LLJ 68; State of Bihar v. Gopi Kishore Prasad, AIR

1960 SC 689: 1960(1) LLJ 577: 1959-60(17) FJR 390.

The cases of termination/dismissal of a servant are put in three broad heads.

The first head relates to relationship of master and servant governed purely by contract

of employment. Any breach in such a case is enforced by a suit for wrongful dismissal

and damages. Breach of contract of employment is not capable of finding a declaratory

judgment of subsistence of employment. The second type of cases of master and servant

arises under Industrial Law, under which a servant wrongfully dismissed, may be

reinstated under the circumstances provided therein. The third category of cases of

master and servant arises in regard to the servant in the employment of the State or of

other public or local authorities or bodies created under statute. Courts in appropriate

cases have declared the dismissal invalid and that the employee continues to be in


service. See Monmatha Nath Vyakaram Sastri v. State of Meghalaya, 1982 (2) SLJ 142;

U.P.State Warehousing Corporation v. Chandra Kiran Tyagi, AIR 1970 SC 1244:

1970(2) SCR 250: 1969(2) SCC 838: 1969 SLR 799: 1970 Lab IC 1044; Arya Vidya

Sabha Kashi v. Krishan Kumar Srivastava, AIR 1976 SC 1073: 1976(3) SCC 83: 1976

Lab IC 698; Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain,

AIR 1976 SC 888: 1976(2) SCR 1006: 1976(2) SCC 58: 1976(1) SLR 213: 1976 Lab IC

576; Smt. J. Tiwari v. Smt. Jwala Devi Vidya Mandir, AIR 1981 SC 122: 1979(4) SCC

160: 1979(1) SLR 614.

65. Application of Article 311 where Service Terminated in Pursuance of

Contract or Rules — The statutory protection afforded under Art. 311 is only against

dismissal or removal from service and not in a case where the services are terminated in

pursuance of contract of service or the rules. Ashok Kumar Bhatia v. Union of India,

1973 SLJ 273; Malti Heera (Smt) v. State of Punjab, 1973 SLJ 416: 1973 (1) SLR 769;

State of U.P. v. Tilak Singh, 1975 SLJ 94: 1976 (1) SLR 129: 1975 Lab IC 1021.

The appointment either on probation or on officiating basis is from the very

nature of such employment itself of a very transitory character and in the absence of

any special contract or specific rule regulating the conditions of service, the implied

term of such appointment, under the ordinary law of master and servant, is that it is

terminable at any time. State of Assam v. Biraja Mohan Deb, 1969(II) SCWR 583;

Purshottam Lal Dhingra v. Union of India, 1958 SCJ 217: 1958 SCR 828: AIR 1958

SC 36.

Where the appointment was on contractual basis and services were terminated

on the expiry of period of contract, it was held that the termination was neither the

retrenchment nor was illegal. District Animal Husbandry Officer v. Judge, Labour

Court, 2003 (1) SLR 786 Raj; Termination after completion of project is also held to

valid. Surendra Kumar Sharma v. Vikas Adhikari, 2003 (3) SLR 601 SC.

66. Appointment under Agreement : Appointee Holding Civil Post :

Termination of Service by Notice under Agreement: Void — (i) Respondent was

appointed under an agreement and was to be allowed to remain in service upto the age

of 55 years. The agreement provided that services will be liable to be terminated on six

month”s notice on either side. Held, the respondent was holding a civil post within the

meaning of Art. 311(1) of the Constitution. Termination of service on six month”s

notice would not amount to merely termination of service but removal from service

within the meaning of Art. 311(1). Notice of termination without complying with the

provisions of Art. 311(2) was void. Union of India v. M.A. Chaudhary, 1975 SLJ 1:

1975 (1) SLR 300.

(ii) In Raja Zutshi v. Union of India, 1975 SLJ 4: 1975 (1) SLR 311, it was

held that where an officer under contract service holds a civil post his service cannot be

terminated in violation of Art. 311.

67. Before Expiry of Fixed Period — (i) When the appointment to a

temporary post is for a definite period, services cannot be terminated by one month”s

notice. Rajendra Sareen v. State of Haryana, AIR 1970 Delhi 132; Parshottam Lal


Dhingra v. Union of India, AIR 1958 SC 36: 1958 SCR 828: 1958 SCJ 217: 1958(1)

LLJ 544; see other views in State of U.P. v. Kedar Nath Pande, 1970 Lab IC 131.

(ii) Where a person is appointed in temporary or officiating capacity for fixed

term under the terms of employment and there is nothing in the said order permitting

premature termination of his appointment before the expiry of the period fixed in that

order, he acquired a right to hold the post till the expiry of that period, and his services

cannot be terminated before the expiry of that period unless he has been guilty of some

misconduct, negligence, inefficiency or other disqualifications and appropriate

proceedings are taken under the rules read with Art. 311(2) of the Constitution.

Prasanta Mohapatra v. State of Orissa, AIR 1969 Orissa 61; Suman Kumar v. State of

H.P., 1975 Lab IC 1275.

68. Termination of Tenure Post before Full Period — Employment can be

terminated before the employee completes full period of his appointment. The relation

between person appointed and the employer being contractual, termination of

relationship will not entitle the servant to a declaration that his employment had not

been validly determined. Dr.Bool Chand v. Chancellor, Kurukshetra University, AIR

1968 SC 292: 1968(1) SCR 434: 1968 Lab IC 232: 1968 SLR 119: (1968) 2 SCJ 171:

(1968) 1 SCWR 183; A.Francis v. Municipal Councillors of Kualalumpur, (1962) 3 All

ER 633; Satish Chandra v. Union of India, AIR 1953 SC 250: 1953 SCR 655.

69. Termination of Service of an Employee of Government Company — To

an employee of such a company or corporation, Art. 311 of Constitution does not apply

in as much as he does not hold a civil post under the Government. The employee cannot

make any grievance by challenging the termination order on the ground that since it was

a penalty, he was entitled to an opportunity. The administrative control vests in the

Company and it is the Company which has the power to frame Rules and Regulations

regarding the employment of its employees. Articles of a Company are the internal

regulations of the Company. They cannot be enforced by means of a writ under Art. 226

of the Constitution. Raja Harendra Singh v. Union of India, 1982 Lab IC 1733.

The services of a permanent employee, whether employed by the Government,

of Govt. company or Govt. instrumentality or Statutory Corporations or any other

“Authority” within the meaning of Article 12, cannot be terminated abruptly and

arbitrarily, either by giving him a month”s or three month”s notice or pay in lieu

thereof or even without notice, notwithstanding that there may be a stipulation to that

effect either in the contract of service or in the Certified Standing Orders. Central

Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, 1986 (2) SCR 278:

1986 (3) SCC 156: AIR 1986 SC 1571: 1986 Lab IC 1312: 1986(3) Comp LJ 1: 1986(2)

CCC 335: 1986(2) LLJ 171: 1986(2) LLN 382: 1986(53) FLR 523: 1986(2) SLJ 320:

1986(69) FJR 171: 1986(2) SLR 345: 1986 ATC 103: 1986 SCC (L&S) 429: 1986(2)

Cur LR 322: 1986(2) SCJ 201; Bharat Coking Coal Ltd. v. Babulal, 1996(10) SCC 295:

1996 Supp (4) SCR 289: 1996(3) SLJ 106: 1996(5) SLR 319: 1997(2) LLJ 926; Uptron

India Ltd. v. Shammi Bhan, 1998(1) SCR 719: 1998(6) SCC 538: AIR 1998 SC 1681:

1998(2) SLR 544: 1998(1) LLJ 1165: 1998(79) FLR 233: 1998(3) SLJ 223: 1998 Lab

IC 1545: 1998(2) LLN 959: 1998(92) FJR 700.


See also Pradeep Kumar Biswas v. Indian Institute of Chemical Biology,

2002(3) SCR 100: 2002(5) SCC 111: 2002(3) SCJ 342: 2002(3) SLR 433 SC.

70. Termination of Service under Article 310 (1) — Termination of service

under Art.310(1) of the Constitution is not subject to the rules framed in virtue of Art.

309 of the Constitution. Mohammad Akhtar v. Union of India, 1967 ALJ 645.

The doctrine of pleasure contained in Art. 310 is subject to Art. 311, but not to

Rules or Acts made under Art. 309 and where the protection of Art. 311 does not apply,

the service of a Government servant can be terminated at any time without holding an

enquiry which may be prescribed by the Rules or Acts made under Art. 309. The

disciplinary proceedings under the present rule of 1965 are incumbent or obligatory in

case of Civilians in Defence Forces as such servants are not entitled to the protection

under Art. 311. AIR 1976 SC 2433: 1977(1) SCR 87: 1976(3) SCC 677: 1977 SLJ 547:

1976 (2) SLR 519; O.Ramachandra Reddy v. Director, D.R.D.L., 1980 (1) SLR 490;

Hazara Singh v. Union of India, 1982 (1) SLR 623; V.Y. Thomas v. Commandant,

A.D.C. Centre, 1982 Lab IC 632: 1982 (2) SLR 39.

Army defends the country and its frontiers. It is entrusted with the task of

protecting against foreign invasion and preserving the national independence. The

arduous nature of duties, the task they have to perform in emergent situations and the

unknown lands and unknown situations wherein they have to function demand an

exceptionally high standard of behaviour and discipline compared to their counterparts

in civil services. That is why the military people command the respect of the masses.

Such factors taken together demand the military services being treated as a class apart

and a different system of justice - military justice - being devised for them. Article 33

empowers the Parliament to restrict or abrogate fundamental rights in their application

to the members of the armed force so as to ensure the proper discharge of their duties

and the maintenance of discipline among them. Right to file special leave to appeal

before the Supreme Court and power of superintendence vesting in the High Courts do

not extend over judgment, determination, sentence or order passed or made by any

Court or Tribunal dealing with armed forces. Members of the defence services hold

office during pleasure of the President under Article 310 but they are not entitled to the

protection offered by Article 311. The principles of interpretation of statutes which

apply to any other statute also apply to the legislation dealing with defence services;

however, the considerations of the security of the State and enforcement of a high

degree of discipline additionally intervene and have to be assigned weightage while

dealing with any expression needing to be defined or any provision needing to be

interpreted. Union of India v. Harjeet Singh Sandhu, 2001(2) SCR 1127: 2001(5) SCC

593: AIR 2001 SC 1772: 2002(1) SLJ 1: 2001 Lab IC 1707.

CCS (CCA) Rules have no application on defence personnel as the defence

personnel hold their office subject to the pleasure of the President and the rules framed

under proviso to Article 309 are subject to the doctrine of pleasure enshrined under

Article 310. Union of India v. S.B. Mishra, AIR 1996 SC 613: 1995 Supp (2) SCR 704:

1995(5) SCC 657: 1995(5) SLR 201: 1996 Lab IC 619: 1996(1) SLJ 94.

Civilian employees working in defence service are not entitled to the protection

under CCS (CCA) rules and are subject to unfettered exercise of pleasure of the

266 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 12

President or the Governor as the case may be. Director General of Ordnance Services

v. P.N. Malhotra, AIR 1995 SC 1109: 1995(1) SCR 676: 1995 Supp (3) SCC 226:

1995(1) SLR 720: 1995(30) ATC 630: 1995(2) SLJ 183: 1995 Lab IC 1359: 1995(2)

LLJ 754: 1996(1) LLN 292

71. Government Servants who Belong to Scheduled Castes and Scheduled

Tribes have no Special Protection Regarding Termination of Service — The

Constitution guarantees special concession to the members of the Scheduled Castes and

Tribes in the matter of recruitment but no constitutional provision or any other law

appears to provide special protection regarding termination of services of Government

servants belonging to Scheduled Castes and Scheduled Tribes. Ramanand Ramnarayan

Raidas v. State of M.P., 1979 (3) SLR 671.

DISCIPLINARY AUTHORITIES R. 12

12. Disciplinary Authorities — (1) The President may impose any

of the penalties specified in rule 11 on any Government servant.

(2) Without prejudice to the provisions of sub-rule (1), but subject

to the provisions of sub-rule (4), any of the penalties specified in Rule

11 may be imposed on :

(a) a member of a Central Civil Service other than the General

Central Service, by the appointing authority or the authority

specified in the Schedule in this behalf or by any other authority

empowered in this behalf by a general or special order of the

President;

(b) a person appointed to a Central Civil Post included in the

General Central Service, by the authority specified in this behalf by

a general or special order of the President or, where no such order

has been made, by the appointing authority or the authority

specified in the Schedule in this behalf.

(3) Subject to the provisions of sub-rule (4), the power to impose

any of the penalties specified in Rule 11 may also be exercised, in the

case of a member of a Central Civil Service, Group C (Other than the

Central Secretariat Clerical Service), or a Central Civil Service, Group D:—

(a) if he is serving in a Ministry or Department of the Government

of India, by the Secretary to the Government of India, in that

Ministry or Department, or

R. 12] PENALTIES AND DISCIPLINARY AUTHORITIES 267

(b) if he is serving in any other office, by the head of that office,

except where the head of that office is lower in rank than the

authority competent to impose the penalty under sub-rule (2).

4. Notwithstanding anything contained in this rule:—

(a) except where the penalty specified in clause (v) or clause (vi) of

Rule 11 is imposed by the Comptroller and Auditor-General on a

member of the Indian Audit and Accounts Service, no penalty specified

in clause (v) to (ix) of that rule shall be imposed by any authority

subordinate to the appointing authority;

(b) where a Government servant who is a member of a service

other than the General Central Service or who has been substantively

appointed to any civil post in the General Central Service, is temporarily

appointed to any other service or post, the authority competent to

impose on such Government servant any of the penalties specified in

clauses (v) to (ix) of Rule 11 shall not impose any such penalties unless

it has consulted such authority, not being an authority subordinate to it,

as would have been competent under sub-rule (2) to impose on the

Government servant any of the said penalties had he not been appointed

to such other Service or post;

(c) in respect of a probationer undergoing training at the Lal

Bahadur Shastri National Academy of Administration, the Director of

the said Academy shall be the authority competent to impose on such

probationer any of the penalties specified in clauses (i) and (iii) of Rule

11 after observing the procedure laid down in Rule 16.

Explanation 1 — For the purposes of clause (c), “probationer”

means a person appointed to a Central Civil Service on probation.

Explanation 2 — Where a Government servant belonging to a

Service or holding a Central Civil post of any Group, is promoted,

whether on probation or temporarily to the Service or Central Civil post

of the next higher Group, he shall be deemed for the purposes of this

Rule to belong to the Service of, or hold the Central Civil post of, such

higher Group.


COMMENTARY

S Y N O P S I S

1. Power of appointment carries with power to impose penalties ..................................... 269

2. Authority who can dismiss or remove from service ...................................................... 269

3. Authority of head of office ............................................................................................. 270

4. Appointing authority can not delegate its power of dismissal ....................................... 271

5. Delegation of power to remove an employee ................................................................ 271

6. Officer-in-charge of current duties ................................................................................ 272

7. Rule 12 (3), supplementary to Rule 12 (2) .................................................................... 272

8. Government can confer power of dismissal on other officer ......................................... 272

9. Dismissal or removal by authority subordinate to that by which he was appointed ...... 272

10. Provincial Government to make appointment but appointment made by Commandant

General: Dismissal by Commandant General not void .................................................. 273

11. Power of authority subordinate to appointing authority ................................................ 273

12. Authority subordinate— Subordination is of rank and not of functions ........................ 273

13. Punishment by Delegate Subordinate in Rank ............................................................... 274

14. Illustrative cases —

(1) Commissioner Appointing Authority : Revision by Deputy Commissioner Illegal . .274

(2) General Manager Appointing Authority : Removal by Asst. General Manager

Illegal ............................................................................................................................. 274

(3) Chief Electrical Engineer Appointing Authority : Removal by Divisional Assistant

Engineer : Unconstitutional ............................................................................................ 274

(4) Director of Industries Appointed Instructor : Removal by Principal of Institute ...... 275

(5) Director of Health Service Being Appointing Authority : Removal by Civil

Surgeon (D.M.P.) Set Aside ........................................................................................... 275

(6) Lekhpal under U.P. Lekhpal Service Rules, 1958 .................................................... 275

(7) Superintendent of Police ........................................................................................... 275

(8) Inspector General under Central Reserve Police Force Rules, 1955 ......................... 276

(9) T.N. Police Subordinate Services (Discipline and Control) Rules, 1955 .................. 276

15. Exercise of power of President and Governor to dismiss public servant ....................... 276

16. Order under Article 77 or Article 166: Validity cannot be questioned .......................... 276

17. Promotion by higher authority, dismissal by authority lower in rank to promoting

authority ........................................................................................................................ 277

18. Order by authority superior to punishing authority ....................................................... 277

19. Order of officer superior to appointing authority .......................................................... 278

20. Disciplinary jurisdiction over members of State Judicial Service ................................. 278

21. Superintendent of Police or District Superintendent of Police ...................................... 279

22. Superintendent of Police not subordinate to Senior Superintendent of Police ............... 279


23. Successor disciplinary authority — change of opinion ................................................. 279

1. Power of Appointment Carries with Power to Impose Penalties — The

power of appointment carries with power to dismiss, discharge, remove an employee or

to terminate his services in accordance with the conditions of employment. Dr. Bool

Chand v. Chancellor, Kurukeshtra University, (1968) 2 SCJ 171: (1968) I SCWR 183:

AIR 1968 SC 292: 1968(1) SCR 434: 1968 Lab IC 232: 1968 SLR 119; S.R. Tewari v.

District Board, Agra, (1964) 3 SCR 55: AIR 1964 SC 1680: 1964(3) SCR 55: 1964(2)

SCJ 300; Lekhraj Sathramdas Lalvani v. N.M. Shah, (1965) II SCWR 885: AIR 1966

SC 334: 1966(1) SCR 120; P.G.I. v. Shamlal, 1974 SLJ 365: 1974 (2) SLR 814;

Manager, Govt. Branch Press v. D.B. Belliappa, AIR 1979 SC 429: 1979(2) SCR 458:

1979(1) SCC 477: 1979 Lab IC 146: 1979 SLJ 233: 1979 (1) SLR 351; Krishna Kumar

v. Divisional Assistant Electrical Engineer, AIR 1979 SC 1912: 1980(1) SCR 50:

1979(4) SCC 289: 1979 Lab IC 1314: 1979 SLJ 523: 1979 (2) SLR 291: (1980) 1 SCJ

183. See also M.P. Patrudu v. Controller General, Defence Accounts, New Delhi, 1994

(1) SLR 219 (CAT Hyderabad).

An order of reversion passed by authority subordinate to the appointing

authority was held to be bad in law. V.R. Vishwanath Ramji Maandare v. Maharashtra

State Road Transport Corporation, Bombay, 2001(1) SLR 480 (DB).

Although Art. 311 of the Constitution does not speak as to who shall initiate

the disciplinary proceedings but that can be provided and prescribed by the Rules. But

if no Rules have been framed, saying as to who shall initiate the departmental

proceedings, then on the basis of Art. 311 of the Constitution it cannot be urged that it

is only the appointing authority and no officer subordinate to such authority can initiate

the departmental proceeding. Registrar of Co-operative Societies v. F.X. Fernando,

1994(1) SCR 959: 1994(1) JT 666: 1994(2) SCC 746: 1994(27) ATC 188: 1994(1) SLJ

124: 1994(1) SLR 820: 1994(68) FLR 769: 1994(1) LLN 847: 1994(1) LLJ 819; Steel

Authority of India v. R.K. Diwakar, AIR 1998 SC 2210: 1997(11) SCC 17: 1997(7) JT

404: 1997(3) CLT 379(SC): 1997(77) FLR 351: 1997(5) SLR 234: 1998(1) LLJ 344:

1998(1) SLJ 57: 1998 Lab IC 2122; See also Ram Kishan v. Union of India, AIR 1996

SC 255: 1995(6) SCC 157: 1995(7) JT 43: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1)

LLN 14: 1995(71) FLR 929; Additional Supdt. of Police v. T. Natarajan, 1998(9) JT

257: 1999(3) LLJ 1482: 2000(85) FLR 39.

2. Authority Who can Dismiss or Remove from Service — It is the

appointing authority who has to apply its mind and decide for itself whether a particular

Government employee should be dismissed or removed from service or not. The

petitioner having been appointed by the State Government, it was only the said

Government which could pass the order of his compulsory retirement. Balbir Singh v.

State of Punjab, AIR 1970 Punj 459.

Delegation of the power to make a particular appointment does not enhance or

improve the hierarchical status of the delegate. Where the appellant was appointed by

the Chief Electrical Engineer he could not be removed from service by the Divisional

Engineer because the latter”s power to make appointments to certain posts had been


delegated to him. Whether or not an authority is subordinate in rank to another has to be

determined with reference to the state of affairs existing on the date of appointment.

Krishna Kumar v. Divisional Assistant Electrical Engineer, AIR 1979 SC 1912:

1980(1) SCR 50: 1979(4) SCC 289: 1979 Lab IC 1314: 1979 (2) SLR 291: 1979 SLJ

523: (1980) 1 SCJ 183.

Rule 12 permits the President to appoint an ad hoc disciplinary authority. T.K.

Sajeeda Begum v. Union of India, (1990) 14 ATC 7 (Ernakulam).

Where the employee is working in the operative department of the Railway,

charge-sheet cannot be issued by an officer in the Commercial Department. M.L. Gupta

v. Union of India, (1988) 6 SLR 505 (CAT Allahabad).

As per rule 13(2), CCS (CC&A) Rules, a disciplinary authority competent to

impose any of the minor penalties mentioned in Rule 11, CCS (CC&A) Rules may

institute disciplinary proceedings against any Government servant for the imposition of

any of the major penalties also notwithstanding the fact that such authority is not

competent under the rules to impose such penalty. T.K. Sajeeda Begum v. Union of

India, (1990) 14 ATC 7 (Ernakulam).

Article 311 does not provide that a member of a civil service or a person

holding a civil post either under the Union or a State cannot be dismissed or removed

by an authority except the appointing authority. Held that there is no requirement that

the authority which takes disciplinary action must continue to have the power of

making appointment to the civil service or on a civil post under the Union or a State. It

can be any other authority so long as it is not subordinate in rank or grade to the

authority by which the delinquent Government servant was appointed. That is the only

requirement of Article 311 and nothing more can be read into it. Jai Jai Ram v. Uttar

Pradesh State Road Transport Corporation, AIR 1996 SC 2289: 1996(4) SCC 727:

1996(6) JT 463: 1996 SCC(L&S) 1071: 1996 Lab IC 2034: 1996(2) LLJ 729: 1996(3)

SLJ 15: 1996(5) SLR 141: 1996(74) FLR 2016: 1996(2) LLN 465.

On a reference to Rule 2(a) and Rule 9 of the Railway Servants (Discipline and

Appeal) Rules, it was held that it would be impossible for the President to deal with all

the disciplinary matters of the Government employees. Therefore, delegation of

appointment power was made to the General Manager and disciplinary power was

delegated to the Divisional Manager. The General Manager in not the delegator.

Consequently, the doctrine that a delegator cannot further delegate his powers to the

delegate has no application. As a result, it was held that the delegation of power to

impose appropriate punishment is permissible. Union of India v. N.V. Phaneendran,

1995 Supp (3) SCR 141: 1995(6) SCC 45: 1995(31) ATC 431: 1995(5) SLR 260

3. Authority of head of office— For the penalties in relation to Rule 11 of the

CCS (CCA) Rules are as mentioned in items (i) to (ix), the authority competent to

impose the penalty is the Head of the Office. As a result, the Head of Office, namely,

the Assistant Manager is the competent authority to appoint. Once he is the competent

authority to appoint, he is equally, the competent authority to impose the penalty.

Himachal Road Transport Corporation v. Kewal Krishan, AIR 1997 SC 2667: 1997(9)


SCC 39: 1997(2) SLR 580: 1997(76) FLR 233: 1997(2) SCJ 172: 1997 Lab IC 2652:

1998(1) LLJ 1058: 1998(1) SLJ 44: 1998(3) LLN 24.



of the Office. As a result, the Head of Office, namely, the Assistant Manager was held

to be the competent authority to appoint. Once he is the competent authority to appoint,

he is equally, the competent authority to impose the penalty. Himachal Road Transport

Corporation v. Kewal Krishan, AIR 1997 SC 2667: 1997(9) SCC 39: 1997(2) SLR 580:

1997(76) FLR 233: 1997(2) SCJ 172: 1997 Lab IC 2652: 1998(1) LLJ 1058: 1998(1)

SLJ 44: 1998(3) LLN 24.

4. Appointing Authority Cannot Delegate its Power of Dismissal — (i)

Appointing authority cannot delegate its power of removal or dismissal of a

Government servant. Balbir Singh v. State of Punjab, AIR 1970 Punj 459.

(ii) Where President or Governor is the appointing authority the decision of

minister or officer under the rule of business is the decision of the President or the

Governor. Where functions entrusted to a minister are performed by an official

employed in the minister”s department there is in law no delegation because

constitutionally the act or decision of the official is that of the minister. The official is

merely the machinery for the discharge of the functions entrusted to a minister.

Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 906: 1975(3) SCC

241: 1974 Crl LJ 1500: 1974 CrLJ (SC) 575: 1974 SCC(Cr) 859: 1974 CAR 270: 1974

(2) SLR 701.

A delegation of powers, made under rule 12 (2) (a), CCS (CC&A) Rules need

not be published in the Gazette. In the rules, whenever notification in the Official

Gazette is required, the same has been mentioned. Where an order, general or special, is

to be issued, the same has been mentioned without any requirement of publication.

Orders of delegation are not subordinate legislation but are in the nature of executive

orders and need not be published. R.C. Pathak v. Union of India, (1990) 13 ATC 662

(New Delhi).









1846: 2000(4) SLR 355 (SC).

5. Delegation of Power to Remove an Employee — It is implicit in the

statutory prohibition debarring removal by a lesser authority, that the appointing

authority has to personally apply its mind to the question of removal and cannot

delegate such a function. Since the authority which can remove an employee is the

appointing authority or its superior in office, the protection thus provided cannot be


destroyed by importing concepts of agency. Management of D.T.U. v. B.B.L.Hajelay,

(1972) II SCWR 597: AIR 1972 SC 2452: 1973(2) SCR 114: 1972(2) SCC 744: 1972

SLR 787: 1972 Lab IC 1619.

6. Officer-in-charge of Current Duties — An officer appointed to perform the

current duties cannot exercise powers under Rule 12. Paresh Chandra Dutta v.

Collector of Calcutta, 1979 (1) SLR 44.

7. Rule 12 (3), Supplementary to Rule 12(2) — Rule 12(3) is supplementary

to Rule 12(2). Rule 12(2) specifies certain authorities as disciplinary authorities, and

Rule 12(3) mentions that in respect of employees of certain categories certain other

officers will also be the disciplinary authorities. Commissioner of Transport, H.P.Govt.,

v. Narain Dass, 1974 (1) SLR 386: 1974 SLJ 621.

8. Government can Confer Power of Dismissal on Other Officer — There is

nothing in the Constitution which debars the Government from conferring powers on an

officer other than the appointing authority to dismiss a Government servant provided he

is not subordinate in rank to the appointing officer or authority. State of U.P. v. Ram

Naresh Lal, AIR 1970 SC 1263: 1970(3) SCC 173: 1970 Lab IC 1063: 1970 SLR 819.

Whether or not an authority is subordinate in rank to another has to be determined with

reference to the state of affairs existing on the date of appointment. It is at the point of

time the Constitutional Guarantee under Art. 311(1) becomes available by the person

holding a civil post under the Union Government that he shall not be removed or

dismissed by an authority subordinate to that which appointed him. The subsequent

authorisation made in favour of respondent in regard to making appointments to the

post held by appellant cannot cover the power to remove him. Krishna Kumar v.

Divisional Asstt. Electrical Engineer, AIR 1979 SC 1912: 1980(1) SCR 50: 1979(4)

SCC 289: 1979 Lab IC 1314: 1979 SLJ 532: 1979 (2) SLR 291: (1980) 1 SCJ 183.

On a reference to Rule 2(a) and Rule 9 of the Railway Servants (Discipline and

Appeal) Rules, it was held that it would be impossible for the President to deal with all

the disciplinary matters of the Government employees. Therefore, delegation of

appointment power was made to the General Manager and disciplinary power was

delegated to the Divisional Manager. The General Manager is not the delegator.

Consequently, the doctrine that a delegator cannot further delegate his powers to the

delegate has no application. As a result, it was held that the delegation of power to

impose appropriate punishment is permissible. Union of India v. N.V. Phaneendran,

1995 Supp (3) SCR 141: 1995(6) SCC 45: 1995(31) ATC 431: 1995(5) SLR 260

9. Dismissal or Removal by Authority Subordinate to that by which he was Appointed — The Constitutional Guarantees to a civil servant are:—

(i) that he cannot be dismissed or removed from service by authority who is in

rank inferior to that of the appointing authority;

(ii) if the two authorities i.e. the appointing authority and dismissing authority

are different, they must be at least of co-ordinate equal rank;

(iii) it is of no consequence that the subsequent authority enjoys the same

powers as the former;


(iv) subordination has to be understood in rank and not in the exercise of

powers which in other words means if the succeeding authority has all the powers of the

preceding authority but is inferior in rank and status to the appointing authority, he

cannot dismiss a civil servant appointed by the authority who is superior in rank;

(v) if a certain civil servant is appointed by one authority and subsequently

those powers are vested in a different authority, lower in rank but by some rule or some

enactment appointments made by the previous authority are to be deemed to have been

made by the succeeding authority, even then the succeeding authority cannot dismiss a

servant appointed by the superior authority;

(vi) if by means of some transfer of a civil servant from one department to

another or from one Government to another, the powers of dismissal are to be exercised

by the Head of the Deptt. who is equal in rank to the previous Head of the Department

or in the case of one Government succeeding another with equal powers, then dismissal

or removal of a civil servant by the succeeding Head of the Department or Government

is not invalid and does not violate Art. 311(1). State of J &K v. Raj Mohammad, 1971

Lab IC 1481 (FB): 1971 (2) SLR 828 (J&K); Mysore State Road Transport Corpn. v.

Mirza Khasim Ali Beg, AIR 1977 SC 747: 1977(2) SCR 282: 1977(2) SCC 457: 1977

Lab IC 272: 1977 (1) SLR 237; Dina Nath v. District Medical Officer, 1982 (2) SLJ

691; Girwar v. Union of India, 1982 (2) SLJ 56.

Termination by an authority who actually passed the order of appointment is

not invalid even if such authority is no appointing authority under the Rules. State of

Uttar Pradesh v. Chandrapal Singh, 2003(4) SCC 670: 2003(2) LLJ 744.

10. Provincial Government to make Appointment but Appointment made

by Commandant General : Dismissal by Commandant General not Void — The

appellant was appointed by the Commandant General even though under rules the

appointment was to be made by the Provincial Govt. The dismissal order by the

Commandant General would not be void on the ground that it is made by an authority

lower than the appointing authority. Ramanand Singh v. State of Bihar, 1982(1) SCC

214: AIR 1982 SC 1394: 1982(1) SLR 693: 1982 BLJ 395: 1982 BLJR 438: 1982 Pat

LJR (SC) 55: 1982(2) SCWR 209.

11. Power of Authority Subordinate to Appointing Authority —

Termination of service by an authority subordinate to the appointing authority is

unconstitutional. Head of Department is appointing authority. Rule cannot be framed

authorising an officer subordinate to Head of Department to dismiss an employee

within meaning of Art. 311(2) of the Constitution. Vasanta G. v. State of Nagaland,

AIR 1969 Assam 3; Nawab Husain v. State of U.P., AIR 1969 All 466; Balakdass

Vathoba v. Asst. Security Officer, S.E. Rly., AIR 1960 MP 183; Maqbool Hussain v.

Supdt. of Police, 1969 SLR 660: 1970 Lab IC 601.

12. Authority Subordinate — Subordination is of Rank and not of Functions — What is involved in matters of appointment and removal is the status and

rank of the employee and the status and rank of the authority taking action. Since an

officer or an employee shall not be dismissed by an authority subordinate to that by

which he was appointed, the subordination is of rank and not functions. Management of


D.T.U. v. B.B.L. Hajelay, (1972) II SCWR 597: AIR 1972 SC 2452: 1973(2) SCR 114:

1972(2) SCC 744: 1972 SLR 787: 1972 Lab IC 1619.

13. Punishment by Delegate Subordinate in Rank — Delegation of the

power to make a particular appointment does not enhance or improve the hierarchical

status of the delegate. An officer subordinate to another will not become his equal in

rank by reason of his coming to possess some of the powers of that another. Whether or

not an authority is subordinate in rank to another has to be determined with reference to

the state of affairs existing on the date of appointment. It is at that point of time that the

Constitutional Guarantee under Art. 311(1) becomes available to the person holding, for

example, a civil post under the Union Government that he shall not be removed or

dismissed by an authority subordinate to that which appointed him. The subsequent

authorization made in favour of delegate in regard to making appointments to the post

held by the Government servant cannot confer upon the delegate the power to remove

him. On the date of Government servant”s appointment if the delegate had no power to

make the appointment he cannot have the power to remove that Government servant.

Krishna Kumar v. Divisional Asst. Electrical Engineer, AIR 1979 SC 1912: 1980(1)

SCR 50: 1979(4) SCC 289: 1979 Lab IC 1314: 1979 SLJ 532: 1979 (2) SLR 291.

14. Illustrative Cases —

(1) Commissioner Appointing Authority : Revision by Deputy

Commissioner Illegal — Where an appointment has been made by the Commissioner

then despite the fact that the powers of appointment having been validly delegated to

the Deputy Commissioner, will not clothe the latter, who is admittedly subordinate in

rank to the Commissioner to levy punishment simply because the regulations empower

him to do so. Takhat Singh v. Corporation of Delhi, 1973 SLJ 262: 1973 (2) SLR 350.

(ii) The appointing authority of the petitioner was the Commissioner. Merely

because by a set of rules subsequently framed the punishing authority in respect of the

category to which the petitioner belonged was the Collector, the statutory requirement

on the basis of the Constitutional Guarantee cannot be said to be satisfied by the

authorised officer imposing the punishment. The appointing authority continued to be

Commissioner as a fact and the subsequent authorisation vesting the power in the

Collector to punish an officer of the petitioner”s category did not amount to compliance

of Art. 311(1) of the Constitution. Babaji Charan Rout v. State of Orissa, 1982 (1) SLJ

496: 1982 Lab IC 603: 1981 (3) SLR 189.

(2) General Manager Appointing Authority : Removal by Asst. General

Manager Illegal — The appointing authority of R.2 was General Manager. The Asst.

General Manager decided to remove R.2 as a result of disciplinary enquiry. The General

Manager had delegated his power to the Asst. General Manager to appoint and to

remove from service, a driver like R.2. Held, that a protection which is given to an

employee by the statute cannot be nullified by rules and regulations authorised by the

statute itself. Assistant General Manager was not a competent authority to remove R.2.

Management of D.T.U. v. B.B.L. Hajelay, 1973(2) SCR 114: 1972(2) SCC 744: 1972

SLR 787: 1972 Lab IC 1619.

(3) Chief Electrical Engineer Appointing Authority : Removal by Divisional Assistant Engineer : Unconstitutional — Appellant was appointed by


C.E.E. and he was removed from service by D.A.E. who is subordinate to rank to

C.E.E. Power to make appointment to the post of appellant was delegated to certain

officers including D.A.E. Removal is unconstitutional. Krishna Kumar v. Divisional

Astt. Electrical Engineer, AIR 1979 SC 1912: 1980(1) SCR 50: 1979(4) SCC 289: 1979

Lab IC 1314: 1978 SLJ 532: 1979 (2) SLR 291.

(4) Director of Industries Appointed Instructor : Removal by Principal of Institute — Petitioner was appointed as Punjabi Stenography-instructor by the Director

of Industries and his services were terminated by the Principal of Industrial Training

Institute. Director of Industries had delegated his powers to the Principal to appoint and

terminate the services of clerks/Instructors in the grade of Rs 120-200. Petitioner had

been appointed in the grade of Rs 160-400. Order of termination set aside. Manohar Lal

v. State of Punjab, 1980 (3) SLR 705.

(5) Director of Health Service Being Appointing Authority : Removal by

Civil Surgeon (D.M.P.) Set Aside — Petitioner was appointed by Director of Health

Services. The power to impose a penalty of removal from service as disciplinary

authority had been duly conferred on the Civil Surgeon (D.M.P.), but it was conferred

after the petitioner had been appointed by the Director of Health Services. The Civil

Surgeon could not, therefore, impose the penalty of removal on the petitioner. Dina

Nath v. Dist. Medical Officer (Civil Surgeon), (1982) 2 SLJ 691.

(6) Lekhpal under U.P. Lekhpal Service Rules, 1958 — The Sub-Divisional

Officer being the appointing authority is entitled to take disciplinary action against

Lekhpal (Patwari) and impose the penalties including removal or dismissal from service

under rule 7 of U.P. Lekhpal Service Rules, 1958. State of Uttar Pradesh v. Bihari L.L.

Mishra, 1997(11) SCC 400.

(7) Superintendent of Police— In the state of Tripura, in view of the Clause

(o) of Regulation 861, as substituted by notification dated 17-2-1968, the

Superintendent of Police was competent to initiate proceedings against officers of and

below the rank of Sub-Inspectors. State of Tripura v. Priyabandhu Chakraborty,

1997(11) SCC 405.

In one case the order of dismissal is signed by “Superintendent of Police,

Patiala”. The officer who passed the order did not describe himself as “Superintendent

of Police (Headquarters)”. Whether that description is not correct is a question which

the High Court ought to have dealt with. It should also have dealt with the question

whether the order is incompetent, if it has been passed by the “Superintendent of Police

(Headquarters)”. It may also he necessary to find out whether the respondent was

posted in the Headquarters at the time of his dismissal and was he subordinate to

“Superintendent of Police (Headquarters)”. It may also be necessary to deal with the

contention of the State based upon the language employed under Column (6) of Rule

16.1 of the Punjab Police Rules. The Supreme Court therefore held that the matter

should be examined in depth by the High court. Accordingly the appeal was allowed

and the matter was remitted to the High Court for fresh disposal in accordance with the

law. State of Punjab v. Sarwan Singh, AIR 1996 SC 2981: 1996(1) JT 584: 1996 Lab IC

1045: 1996(1) SLR 748: 1996(72) FLR 663.


Where a superior officer has been authorised to perform some duties under an

Act or a regulation, a subordinate or deputy officer lawfully performing those duties in

the place of his superior is equally empowered to perform the duties of the office of the

superior. Rule 4 applicable on Delhi Police states that not only the Deputy

Commissioner but Additional Deputy Commissioner also has been delegated the power

of appointing Sub-Inspectors, Assistant Sub-Inspectors, Head Constables and

Constables. An Additional Deputy Commissioner is thus competent to pass an order of

dismissal and a police constable, as is the petitioner. Therefore, in a given case, even

Additional Deputy Commissioner can pass order of dismissal. He was held to be an

authority of the same rank as referred to in Section 19 of the General Clauses Act. Ram

Kishan v. Union of India, AIR 1996 SC 255: 1995 Supp (3) SCR 251: 1995(6) SCC

157: 1995(7) JT 43: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71)

FLR 929.

(8) Inspector General under Central Reserve Police Force Rules, 1955— while for the purpose of appointment, the approval of the DIG or the IG, as the case

may be, is required to be obtained, that does not make the IG, the appointing authority.

The punishments shown as items I to II in column 2 of the table can be imposed on non-

gazetted officers and men of various ranks by the authorities named under headings at

columns 3 to 6 in terms of the conditions mentioned in column 7. So far as item No. 1

in Rule 27 is concerned. Subedar (Inspector) can be dismissed or removal from the

Force by the Deputy Inspector General of Police, who is higher in rank than the

Commandant. While considering an almost identical provisions Supreme Court held

that even when prior recommendation is necessary, it does not make the

recommending/approving authority the appointing authority. According to Rule 7(b),

the appointing authority is the Commandant and since the DIG is of higher rank, there

is no illegality in the order passed by him in passing the order of dismissal. Just because

the IG”s approval is required for the purpose of appointment or promotion, the position

of the Commandant as the appointing authority is not changed and the IG does not

become the appointing authority. Kanta Devi v. Union of India, 2003(4) SCC 753.

(9) T.N. Police Subordinate Services (Discipline and Control) Rules, 1955 — Departmental enquiry can be initiated by different authorities such as appointing

authority, disciplinary authority or even the controlling authority. Additional Supdt. of

Police v. T. Natarajan, 1998(9) JT 257: 1999(3) LLJ 1482: 2000(85) FLR 39.

15. Exercise of Power of President and Governor to Dismiss Public Servant

— The decision of Minister or an officer under the rules of business is the decision of

the President or Governor. Shamsher Singh v. State of Punjab, AIR 1974 SC 2192:

1975(1) SCR 814: 1974(2) SCC 831: 1974 (2) SLR 701. The decision of Sardari Lal v.

Union of India, AIR 1971 SC 1547: 1971(3) SCR 461: 1971(1) SCC 411: 1971 (2) SLR

168, that the President has to satisfy personally over-ruled. Also see Hazara Singh v.

Union of India, 1976 (1) SLR 350; T.C. Sharma v. Inspector General of Prisons, 1977

(2) SLR 71.

16. Order under Article 77 or Article 166 : Validity Cannot be Questioned — Order substantially in accordance with the form envisaged by clauses (1) and (2) of

Art. 77 of the Constitution. Its validity could not be called in question on the ground


that it was not an order made by the President. Presumption of correctness attached.

State of Haryana v. Dev Dutt Gupta, 1970 SLR 776; Hazara Singh v. Union of India,

1976 (1) SLR 340; Kanwal Prakash v. State of Punjab, 1976 (2) SLR 801; Yogendra

Thakur v. State of Bihar, 1981 (2) SLR 833.

Where the order communicating the decision is issued in the name of the

President and duly authenticated in the manner prescribed, the presumption is

irrebutable that the order is made by the Governor or President as the case may be, but

where the order does not comply with the provision, it is open to question the validity

that the order was not made by the President or Governor as the case may be. Gulabrao

Keshvrao Patil v. State of Gujarat, 1995 Supp (6) SCR 97: 1996(2) SCC 26: 1995(4)

CCC 362: 1996(1) SCJ 98: 1996(1) CLT 226(SC).

However there is a change in the legal position of judicial review of orders

passed under article 77 of the Constitution. It has been held that though an order is

issued in the name of the President, it does not become an order of the President passed

by him personally, but remains, basically and essentially, the order of the Minister on

whose advice the President acts and passes order. Therefore authenticity, validity and

correctness of such an order can be examined by Supreme Court in spite of the order

having been expressed in the name of the President and the immunity available to the

President under Article 361 can not be extended to the orders passed in the name of the

President under Article 77(1) or Article 77(2). Common Cause, A Registered Society v.

Union of India, AIR 1999 SC 2979: 1999(3) SCR 1279: 1999(6) SCC 667: 1999(3)

KLT 25(2)(SN): 2000(1) CCR 5(SC)

17. Promotion by Higher Authority, Dismissal by Authority Lower in Rank

to Promoting Authority — Where an authority higher than the one entitled under the

statutory rules to order an appointment, in fact orders a valid appointment, it is the

factum of that appointment that controls the scope of the guarantee conferred by Art.

311(1) of the Constitution, and if such a civil servant is dismissed or removed from

service by an authority, no doubt, competent under the rules to order the appointment

and also to order dismissal, which however is lower in rank than the authority which in

fact ordered the appointment, such an order would contravene the provisions of Art.

311(1) of the Constitution. N. Somasundram v. State of Madras, AIR 1956 Mad 419;

Bachubha Ram Singh Ji v. Shri Shiv Lal, AIR 1970 Guj 180; Man Singh v. State of

Punjab, 1973 (1) SLR 365.

18. Order by Authority Superior to Punishing Authority — Where the

service rules do not state that the penalty of dismissal shall not be inflicted on an

employee by any authority higher than that named in the rule, no question of violation

of any rule or Art. 311(1) arises if service is terminated or order of dismissal is passed

by superior authority. Jagan Nath Prasad Sharma v. State of U.P., AIR 1961 SC 1245:

1962(1) SCR 151: 1961(2) LLJ 166; State of Madras v. G. Sundaram, AIR 1965 SC

1103; K.C. Chandrasekharan v. State of Kerala, AIR 1964 Kerala 87; State of Haryana

v. Baldev Krishan Sharma, 1970 SLR 500; Union of India v. Babban Singh, 1981 (3)

SLR 244.

Seetharam Reddy J. in Pothula Subba Rao v. Post Master General, Andhra

Circle, 1980 SLJ 227: 1980 (3) SLR 183, has however held that “unless there is a direct


provision connecting the power to the higher authority imposing penalty alleged for, it

will not be competent for the said higher authority to seek to impose the punishment.”

19. Order of Officer Superior to Appointing Authority — Appointing

authority deciding to retain employee beyond the age of 55 years when retirement age

raised to 58 years. Officer superior to appointing authority has no jurisdiction to decide

whether the Government servant should or should not continue after the age of 55

years. Roshan Lal v. Financial Commissioner, Haryana, 1968 SLR 650; Bhim Chand v.

Dy.Commissioner, Rohtak, 1968 SLR 798.

Where according to rules, the appointing authority was the Commandant and

since the DIG was of higher rank, it was held that there was no illegality in the order

passed by him in passing the order of dismissal. Kanta Devi v. Union of India, 2003(4)

SCC 753.

20. Disciplinary Jurisdiction Over Members of State Judicial Service —

The word “control” used in Article 235 would indicate that although the Appointing

Authority of the District Judge and officers other than District Judges is the Governor

of the State, the words “control over district courts and courts subordinate thereto”,

which are words of wide connotation, vest in the High Court other facets of service of

those officers, namely, their confirmation on completion of the period of probation,

their postings, transfers and disciplinary matters including power to recommend major

punishments. Thus, the “control” vested in the High Court is complete control subject

only to the powers of the Governor in the matter of appointment, initial posting and

promotion to the posts of District Judges. For imposing major punishment, including

the punishment of dismissal, removal or reduction in rank, the High Court can, in

exercise of its powers under Article 235 of the Constitution, hold disciplinary

proceedings and recommend the punishment to be imposed on the delinquent to the

Governor who alone would be competent to impose such punishment having regard to

the provisions of Articles 233 and 234. Yoginath D. Bagde v. State of Maharashtra,

AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5)

SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39.

Disciplinary jurisdiction over members of State Judicial Service is vested in the

High Court which alone can make enquiries into their disciplinary conduct. If as a

result of any disciplinary proceedings, order of dismissal, removal or termination is to

be made, the same can be passed by the Governor on the recommendations of High

Court. Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 814:

1974(2) SCC 831: 1974 (2) SLR 701: 1974 Lab IC 1380; High Court of Punjab v. State

of Haryana, 1975 SLJ 189: 1975 (1) SLR 329; Baradakanta Mishra v. High Court of

Orissa; 1976 (2) SLR 186 (SC); Baldev Raj Guliani v. P.&H. High Court, 1976 SLJ

601: 1976 (2) SLR 758; State of Gujarat v. Ramesh Chandra, AIR 1977 SC 1619:

1977(2) SCR 710: 1977(2) SCC 12: 1977 Lab IC 849; Chief Justice, A.P. v. L.V.A.

Dikshitulu, AIR 1979 SC 193: 1979(2) SCC 34: 1978 Lab IC 1672: 1979 (1) SLR 1; P.

Kumara Menon v. State of Kerala, 1982 (1) SLR 104.

The High Courts are vested with the disciplinary control as well as

administrative control over the Members of the Judicial Service exclusively, but that

does not mean that they can also pass orders of dismissal, removal, reduction in rank or


termination from service while exercising administrative and disciplinary control over

the Members of Judicial Service. Undoubtedly, the High Courts alone are entitled to

initiate, to hold enquiry and to take a decision in respect of dismissal, removal,

reduction in rank or termination from service, but the formal order to give effect to such

a decision has to be passed only by the State Governor on the recommendation of the

High Court. It is well settled again by a catena of decisions of Supreme Court that the

recommendation of the High Court is binding on the State Government/Governor.

Therefore while the High Court retains the power of disciplinary control over the

subordinate judiciary, including the power to initiate disciplinary proceedings, suspend

them pending enquiries and impose punishment on them but when it comes to the

question of dismissal, removal, reduction in rank or termination of the services of the

judicial officer, on any count whatsoever, the High Court becomes only the

recommending authority and cannot itself pass such an order. Registrar

(Administration), High Court of Orissa v. Sisir Kanta Satapathy, AIR 1999 SC 3265:

1999(7) SCC 725: 1999 Lab IC 3243: 1999(4) LLN 1202: 1999(83) FLR 427: 2000(96)

FJR 363: 1999(5) SLR 191: 2000(1) SLJ 226 relying upon Shyam Lal v. State of U.P.,

(1955) 1 SCR 26 and High Court of Judicature for Rajasthan v. Ramesh Chand

Paliwal, (1998) 3 SCC 72.

In another case the order of removal was passed by the High Court itself and

not in the name of Governor. Held that though the recommendation of the High Court

for removal from service is binding on the Governor, the High Court cannot by itself

pass the order of removal from service. Therefore an order terminating the service of a

judicial officer should be treated as a recommendation to Governor. T. Lakshmi

Narasimha Chari v. High Court of Andhra Pradesh, AIR 1996 SC 2067: 1996(5) SCC

90: 1996(73) FLR 1618: 1996 SCC(L&S) 1133: 1996(2) SCJ 524: 1996(2) SLJ 40:

1996(4) SLR 1: 1996(2) LLN 479.

21. Superintendent of Police or District Superintendent of Police —

“Superintendent of Police” in Rules and “District Superintendent of Police” in the Act

refer to one and the same authority. Punjab Police Rules, Rule 16.1, Union of India v.

Jagjit Singh, AIR 1970 SC 122: (1970) 1 SCR 163: 1969(2) SCC 108: 1969 SLR 356;

Union of India v. Ram Kishan, AIR 1971 SC 1403: 1971 Supp SCR 757: 1971(2) SCC

352: 1972 SLR 11: 1971 Lab IC 894: (1971) I SCWR 838.

22. Superintendent of Police not Subordinate to Senior Superintendent of Police — Senior Superintendent of Police had promoted the petitioner to the rank of

Head Constable. He was dismissed by the Superintendent of Police. Held, in both cases

the authority was a Superintendent of Police. Seniority in service did not cause any

disparity in rank. Iqbal Singh v. I.G. Police, 1971 (2) SLR 257 (Delhi).

23. Successor Disciplinary Authority : Change of Opinion — Where the

disciplinary Authority gave a clean bill to the petitioner it is not possible for the

successor of the Disciplinary Authority to change that opinion and issue a self same

charge-sheet against the petitioner. Rabati Mohan Chatterjee v. Union of India, 1973

SLJ 928. See also M.P. Patrudu v. Controller General Defence, Accounts, New Delhi,

1994 (1) SLR 219 (CAT Hyderabad).

280 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. [13

AUTHORITY TO INSTITUTE PROCEEDINGS

R. [13

13. Authority to institute proceedings :— (1) The President or any

other authority empowered by him by general or special order may:—

(a) institute disciplinary proceedings against any Government

servant;

(b) direct a disciplinary authority to institute disciplinary

proceedings against any Government servant on whom that disciplinary

authority is competent to impose under these rules any of the penalties

specified in Rule 11.

(2) A disciplinary authority competent under these rules to impose

any of the penalties specified in clause (i) to (iv) of Rule 11 may

institute disciplinary proceedings against any Government servant for

the imposition of any of the penalties specified in clauses (v) to (ix) of

Rule 11 notwithstanding that such disciplinary authority is not

competent under these rules to impose any of the latter penalties.

COMMENTARY

S Y N O P S I S

1. Authority empowered to institute proceedings .............................................................. 280

2. Authority to issue charge memo ..................................................................................... 281

3. Disciplinary authority competent to impose minor penalty may institute

proceedings for any major penalty ................................................................................ 281

4. Illustrative Cases .............................................................................................. 281

5. Words “may institute disciplinary proceedings” in sub-rule (2), interpretation of ........ 282

6. Departmental enquiry can be initiated by authority competent to take disciplinary

action ............................................................................................................................. 282

7. Application of mind in initiating proceedings ............................................................... 282

8. Disciplinary proceedings against District Judges and Judicial Officers ........................ 283

9. Institution of proceedings: Time for commencement of ................................................ 284

10. Institution of proceedings against employee on verge of retirement or after

retirement ...................................................................................................................... 286

11. Retention in service for disciplinary enquiry ................................................................. 287

1. Authority Empowered to Institute Proceedings — Rule 13 defines the

authority empowered to institute proceedings. The authority to institute disciplinary

proceedings may be different from the authority prescribed for removing a Government

servant. Rule 13 (2) contemplates that the authority empowered to institute proceedings

may not be competent to impose all the penalties prescribed. Commisioner of

R. [13] PENALTIES AND DISCIPLINARY AUTHORITIES 281

Transport, H.P. Government v. Narain Dass, 1974 (1) SLR 386: 1974 SLJ 621. See

also M.P. Patrudu v. Controller General, Defence Accounts, New Delhi, 1994 (1) SLR

219 (CAT Hyderabad); Bhagat Singh v. Union of India, 1994 (7) SLR 743 (CAT

Calcutta).

It is not necessary that the authority competent to impose the penalty must

initiate the disciplinary proceedings and that the proceedings can be initiated by any

superior authority who can be held to be the controlling authority who may be an

officer subordinate to the appointing authority. Steel Authority of India v. R.K.

Diwakar, AIR 1998 SC 2210: 1997(11) SCC 17: 1997(7) JT 404: 1997(3) CLT

379(SC): 1997(77) FLR 351: 1997(5) SLR 234: 1998(1) LLJ 344: 1998(1) SLJ 57:

1998 Lab IC 2122; See also Ram Kishan v. Union of India, AIR 1996 SC 255: 1995(6)

SCC 157: 1995(7) JT 43: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71)

FLR 929

Although Art. 311 of the Constitution does not speak as to who shall initiate

the disciplinary proceedings but, that can be provided and prescribed by the Rules. But

if no Rules have been framed, saying as to who shall initiate the departmental

proceedings, then on the basis of Art. 311 of the Constitution it cannot be urged that it

is only the appointing authority and no officer subordinate to such authority can initiate

the departmental proceeding. Registrar of Co-operative Societies v. F.X. Fernando,

1994(2) SCC 746: 1994(1) SLR 820: 1994(27) ATC 188: 1994(1) SLJ 124: 1994(68)

FLR 769: 1994(1) LLN 847: 1994(1) LLJ 819.

2. Authority to issue charge memo— It is not necessary that charge memo has

to be issued only by an appointing authority or an authority holding a higher rank.


1997(1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3) LLJ 1.

3. Disciplinary Authority Competent to Impose Minor Penalty May Institute Proceedings for Any Major Penalty — Sub-rule (2) of Rule 13 expresses in

general terms that a disciplinary authority competent to impose any of the minor

penalties may institute disciplinary proceedings against any Government servant for the

imposition of any of the major penalties specified in Rule 11.

4. Illustrative Cases:

(i) What Rule 13(2) of CCS(CCA) Rules, 1965 contemplates is that a

subordinate officer who is empowered to impose minor penalty is also entitled to

initiate disciplinary proceedings for major penalties. Of course, the order could be

passed by the competent authority after the enquiry was conducted and matter was

placed before them. Himachal Road Transport Corporation v. Kewal Krishan, AIR

1997 SC 2667: 1997(9) SCC 39: 1997(2) SLR 580: 1997(76) FLR 233: 1997(2) SCJ

172: 1997 Lab IC 2652: 1998(1) LLJ 1058: 1998(1) SLJ 44: 1998(3) LLN 24.

(ii) Under the schedule appended to the Rules any of the “minor penalties”

could be imposed on a Sub-Post Master by the Senior Superintendent of Post Offices

but the “major penalties” could only be imposed by the Director of Postal Services.

Since senior Superintendent of Post Offices is competent to impose any of the penalties

specified in clauses (i) to (iv) he can as disciplinary authority institute disciplinary


proceedings against the Sub-Post Master for the imposition of any of the major

penalties. On receipt of findings of inquiry the major penalty can be imposed by the

Director of Postal Services and not by the Senior Superintendent of Post Offices.

Director of Postal Services v. Oudh Behari, 1980 SLJ 142; Bengali Ram v. State of

H.P., (1980) (2) SLR 776.

(iii) Departmental enquiry against a sub-Inspector of Police was initiated on

basis of certain charges by Supdt. of Police. Supdt. of Police concluded that respondent

was guilty of charges and recommended to Inspector General of Police for dismissal of

respondent. Inspector-General sent copy of report to respondent to show cause why he

should not be dismissed and after considering the explanation submitted by respondent

dismissed him. Supdt. of Police initiated and conducted enquiry under Police

Regulations. Held, that the guarantee given under Article 311 (1) does not include

within itself a further guarantee that the disciplinary proceedings resulting in dismissal

or removal of a civil servant should also be initiated and conducted by the authorities

mentioned in the Article. State of M.P. v. Shardul Singh, (1970) 2 SCJ 442: (1970) 1

SCWR 65: 1970 SLR 101; Also see M.A. Periaswamy v. D.I.G. Police, Madurai, 1974

(2) SLR 843.

In the Zoological Survey of India under Government notification dated 15th

July 1975 the Head Office can take disciplinary action even if the Director of the

Zoological Survey has not delegated the power to him. Ram Niwas v. Union of India,

(1990) 3 SLR 345 (CAT Jabalpur).

Power to punish cannot be exercised by an authority higher in rank than the

competent one. P.M.Abdul Khader v. Union of India, (1990) 14 ATC 619 (Ernakulam).

5. Words “May Institute Disciplinary Proceedings” in Sub-rule (2): Interpretation of — The words used in sub-rule (2) “may institute disciplinary

proceedings” making it unmistakably clear that what the Rule envisages is a

departmental inquiry and not a preliminary inquiry. The distinction between a

preliminary inquiry and a regular departmental inquiry was emphasised by the Supreme

Court in Champaklal Chimanlal Shah v. Union of India, 1964(5) SCR 190: AIR 1964

SC 1854: 1964(1) LLJ 752; Director, Postal Services v. Oudh Behari Singh, 1980 SLJ 142.

6. Departmental Enquiry can be Initiated by Authority Competent to take

Disciplinary Action — An enquiry can only be ordered against a Government servant

by an authority competent to take disciplinary action against him. Where the enquiry

was ordered by an authority who was not the disciplinary authority and the disciplinary

authority passed order of removal on the basis of a report of Enquiry Officer, the order

of removal was set aside as the basis of report was of an Enquiry Officer who had not

been appointed by the disciplinary authority. Baldev Singh v. Secretary to Government,

Punjab, 1969 Cur LJ 625; 1969 SLR 689. See also Bhagat Singh v. Union of India,

1994 (7) SLR 743 (CAT Calcutta).

7. Application of mind in initiating proceedings— A competent authority

exercising powers to initiate disciplinary proceedings has to apply his mind

independently and if such statutory authority acts at the behest of some other higher

authorities, action taken by him or order passed by him shall be nonest in the eyes of


law. D.Ramesh Sinha v. Cadre Authority for Key Personnel of Co-operative Central

Banks/Apex Bank, 2002(1) SLR 93 AP (DB).

8. Disciplinary Proceedings Against District Judges and Judicial Officers

— The Indian Constitution provides for an independent judiciary in every State by

making a provisions for a High Court being constituted for each State. The constitution

has conferred very wide powers and extensive jurisdiction on each High Court,

including the power of superintendence over all the courts and tribunals in the territory

over which it has jurisdiction. Undoubtedly, one of the most important wings of the

judiciary comprises of the subordinate courts as it is in these courts that the judiciary

comes in close contract with the people. In order to secure the independence of the

subordinate judiciary from the Executive, Articles 233 to 237 have been placed in the

Constitution. Article 233 deals with the appointment of District Judges and provides

that appointments, posting and promotions of District Judges in any State shall be made

by the Governor in consultation with the High Court, exercising jurisdiction in relation

to such State. The word “District Judge” has been defined in Article 236(a). The

expression “judicial service” has been defined in clause (b) of Article 236. Article 237

gives power to the Governor to apply, by public Notification, the provisions of this

Chapter and the Rules made there under to any class or classes of Magistrates. Once

such a Notification is issued, the provisions of Articles 234, 235 and 236 will become

applicable to those magistrates and they would become members of the “judicial

service” under the control of the High Court. In order to ensure their independence, the

control over the subordinate courts has been vested in the High Court under Article 235.

From the scheme of the Constitution, it will be seen that though the officers of

subordinate judiciary are basically and essentially Government Servants, their whole

service is placed under the control of the High Court and the Governor cannot make any

appointment or take any disciplinary action including action for removal or compulsory

retirement unless the High Court is “CONSULTED” as required by the constitutional

impact of both the Articles 233 and 234 and the “control” of the High Court indicated

in Article 235. Madan Mohan Choudhary v. State of Bihar, AIR 1999 SC 1018: 1999(3)

SCC 396: 1999(1) SLR 718: 1999(2) LLJ 229: 1999(1) SCJ 449: 1999(2) LLN 4:

1999(81) FLR 712: 2000(1) SLJ 87.

The word “control” used in Article 235 would indicate that although the

Appointing Authority of the District Judge and officers other than District Judges is the

Governor of the State, the words “control over district courts and courts subordinate

thereto”, which are words of wide connotation, vest in the High Court other facets of

service of those officers, namely, their confirmation on completion of the period of

probation, their postings, transfers and disciplinary matters including power to

recommend major punishments. Thus, the “control” vested in the High Court is

complete control subject only to the powers of the Governor in the matter of

appointment, initial posting and promotion to the posts of District Judges. For imposing

major punishment, including the punishment of dismissal, removal or reduction in rank,

the High Court can, in exercise of its powers under Article 235 of the Constitution, hold

disciplinary proceedings and recommend the punishment to be imposed on the

delinquent to the Governor who alone would be competent to impose such punishment

having regard to the provisions of Articles 233 and 234. Yoginath D. Bagde v. State of


Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR

377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39

Therefore the High Court should order, initiate and hold enquiries. The

Governor has no power to initiate such a proceeding or to transfer the same to the

Administrative Tribunal. Where the High Court requested the Government to depute the

Director of Vigilance to hold an enquiry, the Supreme Court held that the High Court

failed to discharge the duty of preserving its control and acted in total disregard of Art.

235 of Constitution. State of West Bengal v. N.N. Bagchi, AIR 1966 SC 447; State of

Assam v. Ranga Mohammad, AIR 1967 SC 903; Gangadhar Shivalingappa Nagmoti v.

State of Mysore, 1970 SLR 716: AIR 1970 Mys 302; Shamsher Singh v. State of

Punjab, AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831: 1974(2) SLR 701:

1974 Lab IC 1380. The High Court within the powers and control vested under Art. 235

can hold disciplinary proceedings and can recommend the imposition of a major

penalty. The actual power of imposition of one of the major punishments is exercisable

by the Governor who is the appointing authority. Barada Kanta Mishra v. High Court

of Orissa, AIR 1976 SC 1899: 1976 Supp SCR 561: 1976(3) SCC 327: 1976(2) SLR

186: 1976 Lab IC 1202: 1976 SLJ 539; Chief Justice, A.P. v. L.V.A. Dikshitulu, AIR

1979 SC 193: 1979(2) SCC 34: 1978 Lab IC 1672 1979 (1) SLR 1; P.Kumara Menon v.

State of Kerala, 1982 (1) SLR 104: 1982 (1) SLJ 91.

9. Institution of Proceedings: Time for Commencement of — It is not

possible to lay down any pre-determined principles applicable to all cases and in all

situations where there is delay in concluding the disciplinary proceedings. Whether on

that ground the disciplinary proceedings are to be terminated each case has to be

examined on the facts and circumstances in that case. The essence of the matter is that

the court has to take into consideration all relevant factors and to balance and weigh

them to determine if it is in the interest of clean and honest administration that the

disciplinary proceedings should be allowed to terminate after delay particularly when

delay is abnormal and there is no explanation for the delay. The delinquent employee

has a right that disciplinary proceedings against him are concluded expeditiously and he

is not made to undergo mental agony and also monetary loss when these are

unnecessarily prolonged without any fault on his part in delaying the proceedings. In

considering whether delay has vitiated the disciplinary proceedings the Court has to

consider the nature of charge, its complexity and on what account the delay has

occurred. If the delay is unexplained prejudice to the delinquent employee is writ large

on the fact of it. It could also be seen as to how much disciplinary authority is serious

in pursuing the charges against its employee. It is the basic principle of administrative

justice that an officer entrusted with a particular job has to perform his duties honestly,

efficiently and in accordance with the rules. If he deviates from this path he is to suffer

a penalty prescribed. Normally, the disciplinary proceedings should be allowed to take

its course as per relevant rules but then delay defeats justice. Delay causes prejudice to

the charged officer unless it can be shown that he is to blame for the delay or when

there is proper explanation for the delay in conducting the disciplinary proceedings.

Ultimately, the court is to balance these two diverse considerations. State of Andhra

Pradesh v. N. Radhakishan, 1998(4) SCC 154: AIR 1998 SC 1833: 1998(2) SLR 786:

1998(3) SLJ 162: 1998(2) LLN 452: 1999(94) FJR 62.


It is trite to say that such disciplinary proceeding must be conducted soon after

the irregularities are committed or soon after discovering the irregularities. They cannot

be initiated after lapse of considerable time. It would not be fair to the delinquent

officer. Such delay also makes the task of proving the charges difficult and is thus not

also in the interest of administration. Delayed initiation of proceedings is bound to give

room for allegations of bias, mala fides and misuse of power. If the delay is too long

and is unexplained, the court may well interfere and quash the charges. But how long a

delay is too long always depends upon the facts of the given case. Moreover, if such

delay is likely to cause prejudice to the delinquent officer in defending himself, the

enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the

factors appearing for and against the said plea and take a decision on the totality of

circumstances. In other words, the court has to indulge in a process of balancing. State

of Punjab v. Chaman Lal Goyal, 1995(2) SCC 570: 1995(29) ATC 546: 1995(1) SLR

700: 1995(2) SLJ 126: 1995(2) LLJ 679: 1995(70) FLR 834 .

Merely because disciplinary proceedings for inefficiency or negligence of duty

for the period. December 1957 to June 1960 were commenced in April 1965, it does not

in any way lead to the conclusion that he was discriminated against or equality in the

matter of employment was denied to him. It is generally not possible to start

disciplinary proceedings immediately after the period ends. Such matters come to notice

after fairly long periods and then have to be processed before the disciplinary

proceedings actually commence. Brahm Dev Seth v. Union of India, 1973 SLJ 961.

In case of delay in disciplinary proceedings, it was held that though Tribunal

was right in ordering reinstatement of the employee but it had no power to quash the

charges and disciplinary proceedings. Union of India v. Raj Kishore Parija, 1995 Supp

(4) SCC 235: 1996 SCC(L&S) 196: 1996(32) ATC 133.

The interest of justice demand that the officers found indulging in corruption or

such acts be proceeded against and dealt with sternly so that it may serve as a lesson to

others. A democratic Government does not mean a lax Government. The rules of

procedure and/or principles of natural justice are not meant to enable the guilty to delay

and defeat the just retribution. The wheels of justice may appear to grind slowly but it

is the duty of all of us to ensure that they do grind steadily and grind well and truly.

The justice system cannot be allowed to become soft, supine and spineless. Delhi

Development Authority v. Skipper Construction, AIR 1996 SC 715: 1996(1) SCC 272:

1996 SCC(L&S) 294: 1996(32) ATC 230: 1995(8) SLR 221.

Allegation of permitting use of sub-standard material in construction and the

role played by officer concerned who was being charge-sheeted in respect of poor

quality of construction. Since sub-standard houses were always available it was held

that delay in such matter could not prejudice the delinquent and therefore quashing of

disciplinary proceedings on the ground of delay not called for. Delhi Development

Authority v. I.J. Mongia, 2001(3) SLT 43.

Where the charges are of very serious nature like misappropriation and illegal

allotment of land, it is not proper to quash the departmental proceedings on the ground

of delay of 16 years. Narendra Pal Singh v. State, 1999(1) SLR 565 Raj. Similarly in

another case there were allegations of embezzlement and fabrication of false record


which are done in secrecy therefore the long time was likely to be taken, and the order

quashing the charges was set aside. Secretary to Government, Prohibition & Excise

Department v. L. Srinivasan, 1996(3) SCC 157: 1996(2) SLR 291: 1996(33) ATC 745:

1996(73) FLR 1247: 1996(1) LLN 448: 1996(2) LLJ 245.

10. Institution of Proceedings Against Employee on Verge of Retirement or After Retirement — There can be no doubt that if disciplinary action is sought to be

taken against a Government servant it must be done before he retires. If a disciplinary

enquiry cannot be concluded before the date of such retirement the course open to the

Government is to pass an order of suspension and refuse to permit the public servant to

retire and retain him in service till such enquiry is completed and a final order is

passed. State of Punjab v. Khemi Ram, AIR 1970 SC 214: 1970(2) SCR 657: 1969(3)

SCC 28: 1969 SLR 833: 1970 Lab IC 271: (1969) II SCWR 718; Mukhtiar Chand Dhir

v. State of Punjab, 1982 (1) SLR 889.

However a view is that the Government can conduct inquiry into misconduct,

negligence or financial irregularity even after retirement of an employee. D.C.

Mazumdar v. Union of India, 1999(5) SLR 338 Delhi (DB): 1999(77) DLT 442:

1999(1) AD(Delhi) 649: 1999(1) LLJ 871. The enquiry proceedings can be legally

continued against the officer even if he has been prematurely retired from service. P.K.

Jain v. State of Haryana, 1999(1) SLR 337 P&H (DB); relying upon Ishar Singh v.

State of Punjab, 1994(3) Recent Services Judgments (RSJ) 543: 1993(4) SLR 655

(P&H) (FB).






Charge-sheet issued in 1999 in respect of events of 1984 much after the

employee was retired from service. The relevant Rules specifically provided that

inquiry shall not be instituted in respect of an event which took place more than four 4

years earlier. Held that the charge-sheet is liable to be quashed. R.C.Gupta v. P.S.E.B,

2002(2) SLR 559 P&H (DB).

In the service rules no specific provision was made for deducting any amount

from the provident fund consequent to any misconduct determined in the departmental

enquiry nor was any provision made for continuance of departmental enquiry after

superannuation. Held that in view of the absence of such provisions in the abovesaid

regulations, it must be held that the Corporation had no legal authority to make any

reduction in the retiral benefits of the appellant. There is also no provision for




666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999

Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143: 1999(95) FJR 21: 1999(3) SLJ 294.


11. Retention in Service for Disciplinary Enquiry — Retention of a

Government servant in service after the age of superannuation for the purpose of

enquiry was not proper and the extension of the service was illegal. State of West

Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447: 1966(1) SCR 771: (1966) I

SCWR 169: (1966) 2 SCJ 59. See also Bhagat Singh v. Union of India, 1994 (7) SLR

743 (CAT Calcutta).


PART VI

PROCEDURE FOR IMPOSING PENALTIES R. 14

14. Procedure for imposing major penalties — (I) No order

imposing any of the penalties specified in clauses (v) to (ix) of Rule 11

shall be made except after an inquiry held, as far as may be, in the

manner provided in this Rule and Rule 15, or in the manner provided by

the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such

inquiry is held under that Act.

(2) Whenever the disciplinary authority is of the opinion that there

are grounds for inquiring into the truth of any imputation of misconduct

or misbehaviour against a Government servant, it may itself inquire into,

or appoint under this rule or under the provisions of the Public Servants

(Inquiries) Act, 1850, as the case may be, an authority to inquire into the

truth thereof.

Explanation — Where the disciplinary authority itself holds the

inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule

(22) to the Inquiring Authority shall be construed as a reference to the

Disciplinary Authority.

(3) Where it is proposed to hold an inquiry against a Government

servant under this rule and Rule 15, the disciplinary authority shall draw

up or cause to be drawn up—

(i) the substance of the imputations of misconduct or

misbehaviour into definite and distinct articles of charge;

(ii) a statement of the imputations of misconduct or

misbehaviour in support of each article of charge, which

shall contain —

(a) a statement of all relevant facts including any

admission or confession made by the Government

servant;

(b) a list of documents by which, and a list of witnesses

by whom, the articles of charge are proposed to be

sustained.

(4) The disciplinary authority shall deliver or cause to be delivered

to the Government servant a copy of the articles of charge, the statement

R. 14] PROCEDURE FOR IMPOSING PENALTIES 289

of the imputations of misconduct or misbehaviour and a list of

documents and witnesses by which each article charges is proposed to be

sustained and shall require the Government servant to submit, within

such time as may be specified, a written statement of his defence and to

state whether he desires to be heard in person.

(5)(a) On receipt of the written statement of defence, the

disciplinary authority may itself inquire into such of the articles of

charge as are not admitted or, if it considers it necessary to do so,

appoint under sub-rule (2), an inquiring authority for the purpose, and

where all the articles of charge have been admitted by the Government

servant in his written statement of defence, the disciplinary authority

shall record its finding on each charge after taking such evidence as it

may think fit and shall act in the manner laid down in Rule 15.

(b) If no written statement of defence is submitted by the

Government servant, the disciplinary authority may itself inquire into

the articles of charge, or may, if it considers necessary to do so, appoint,

under sub-rule (2) an inquiring authority for the purpose.

(c) Where the disciplinary authority itself inquires into any article

of charge or appoints an inquiring authority for holding any inquiry into

such charge, it may, by an order, appoint a Government servant or a

legal practitioner, to be known as the “Presenting Officer” to present on

its behalf the case in support of the articles of charge.

(6) The disciplinary authority shall, where it is not the inquiring

authority, forward to the inquiring authority —

(i) a copy of the articles of charges and the statement of the

imputations of misconduct or misbehaviour;

(ii) a copy of the written statement of the defence, if any,

submitted by the Government servant;

(iii) a copy of the statements of witnesses, if any, referred to in

sub-rule (3);

(iv) evidence proving the delivery of the documents referred to

in sub-rule (3) to the Government servant; and

(v) a copy of the order appointing the “Presenting Officer”.


(7) The Government servant shall appear in person before the

inquiring authority on such day and at such time within ten working

days from the date of 1[receipt by the inquiring authority] of the articles

of charge and the statement of the imputations of misconduct or

misbehaviour, as the inquiring authority may, by a notice in writing,

specify in this behalf, or within such further time, not exceeding ten

days, as the inquiring authority may allow.

(8)(a) The Government servant may take the assistance of any

other Government servant posted in any office either at his headquarters

or at the place where the inquiry is held, to present the case on his

behalf, but may not engage a legal practitioner for the purpose, unless

the Presenting Officer appointed by the disciplinary authority is a legal

practitioner, or, the disciplinary authority, having regard to the

circumstances of the case, so permits;

Provided that the Government servant may take the assistance of

any other Government servant posted at any other station, if the

inquiring authority having regard to the circumstances of the case, and

for reasons to be recorded in writing, so permits.

Note:— The Government servant shall not take the assistance of

any other Government servant who has 2[three] pending disciplinary

cases on hand in which he has to give assistance.

(b) The Government servant may also take the assistance of a

retired Government servant to present the case on his behalf, subject to

such conditions as may be specified by the President from time to time

by general or special order in this behalf.

(9) If the Government servant who has not admitted any of the

articles of charges in his written statement of defence or has not

submitted any written statement of defence, appears before the inquiring

authority, such authority shall ask him whether he is guilty or has any

defence to make and if he pleads guilty to any of the articles of charge,

the inquiring authority shall record the plea, sign the record and obtain

the signature of the government servant thereon.

1 Substituted by Notification No. 11012.8/94-Estt. (A), dt. 2-01-1996 for the words

“receipt by him”. 2 Substituted by Notification No. 11012/6/92-Estt. (A) dt. 04-6-1992 for the word

“two”.


(10) The inquiring authority shall return a finding of guilt in

respect of those articles of charge to which the Government servant

pleads guilty.

(11) The inquiring authority shall, if the Government servant fails

to appear within the specified time or refuses or omits to plead, require

the Presiding Officer to produce the evidence by which he proposes to

prove the articles of charge, and shall adjourn the case to a later date not

exceeding thirty days, after recording an order that the Government

servant may, for the purpose of preparing his defence -

(i) inspect within five days of the order or within such further

time not exceeding five days as the inquiring authority

may allow, the documents specified in the list referred to

in sub-rule (3);

(ii) submit a list of witnesses to be examined on his behalf;

Note:— If the Government servant applies orally or in writing for

the supply of copies of the statements of witnesses mentioned in the list

referred to in sub-rule (3), the inquiring authority shall furnish him with

such copies as early as possible and in any case not later than three days

before the commencement of the examination of the witnesses on behalf

of the disciplinary authority.

(iii) give a notice within ten days of the order or within such

further time not exceeding ten days as the inquiring

authority may allow, for the discovery or production of

any documents which are in the possession of Government

but not mentioned in the list referred to in sub-rule (3).

Note:— The Government servant shall indicate the relevance of the

documents required by him to be discovered or produced by the

Government.

(12) The inquiring authority shall, on receipt of the notice of

discovery or production of documents, forward the same or copies

thereof to the authority in whose custody or possession the documents

are kept, with a requisition for the production of documents by such date

as may be specified in such requisition:


Provided that the inquiring authority may, for reasons to be

recorded by it in writing, refuse to requisition such of the documents as

are, in its opinion, not relevant to the case.

(13) On receipt of the requisition referred to in sub-rule (12), every

authority having the custody or possession of the requisitioned

documents shall produce the same before the inquiring authority:

Provided that if the authority having the custody or possession of

the requisitioned documents is satisfied for reasons to be recorded by it

in writing that the production of all or any of such documents would be

against the public interest or security of the State, it shall inform the

inquiring authority accordingly and the inquiring authority shall, on

being so informed, communicate the information to the Government

servant and withdraw the requisition made by it for the production or

discovery of such documents.

(14) On the date fixed for the inquiry, the oral and documentary

evidence by which the articles of charge are proposed to be proved shall

be produced by or on behalf of the disciplinary authority. The witnesses

shall be examined by or on behalf of the Presenting Officer and may be

cross-examined by or on behalf of the Government servant. The

Presenting Officer shall be entitled to re-examine the witnesses on any

points on which they have been cross-examined, but not on any new

matter, without the leave of the inquiring authority. The inquiring

authority may also put such questions to the witnesses as it thinks fit.

(15) If it shall appear necessary before the close of the case on

behalf of the disciplinary authority, the inquiring authority may, in its

discretion, allow the Presenting Officer to produce evidence not

included in the list given to the Government servant or may itself call

for new evidence or recall and re-examine any witness and in such case

the Government servant shall be entitled to have, if he demands it, a

copy of the list of further evidence proposed to be produced and an

adjournment of the inquiry for three clear days before the production of

such new evidence, exclusive of the day of adjournment and the day to

which the inquiry is adjourned. The inquiring authority shall give the

Government servant an opportunity of inspecting such documents before

they are taken on the record. The inquiring authority may also allow the

Government servant to produce new evidence, if it is of the opinion that

the production of such evidence is necessary in the interests of justice.


Note:— New evidence shall not be permitted or called for or any

witness shall not be recalled to fill up any gaps in the evidence. Such

evidence may be called for only when there is an inherent lacuna or

defect in the evidence which has been produced originally.

(16) When the case for the disciplinary authority is closed, the

Government servant shall be required to state his defence, orally or in

writing, as he may prefer. If the defence is made orally, it shall be

recorded, and the Government servant shall be required to sign the

record. In either case, a copy of the statement of defence shall be given

to the Presenting Officer, if any, appointed.

(17) The evidence on behalf of the Government servant shall then

be produced. The Government servant may examine himself in his own

behalf if he so prefers. The witnesses produced by the Government

servant shall then be examined and shall be liable to cross-examination,

re-examination and examination by the inquiring authority according to

the provisions applicable to the witnesses for the disciplinary authority.

(18) The inquiring authority may, after the Government servant

closes his case, and shall, if the Government servant has not examined

himself, generally question him on the circumstances appearing against

him in the evidence for the purpose of enabling the Government servant

to explain any circumstances appearing in the evidence against him.

(19) The inquiring authority may, after the completion of the

production of evidence, hear the Presenting Officer, if any, appointed,

and the Government servant, or permit them to file written briefs of their

respective case, if they so desire.

(20) If the Government servant to whom a copy of the articles of

charge has been delivered, does not submit the written statement of

defence on or before the date specified for the purpose or does not

appear in person before the inquiring authority or otherwise fails or

refuses to comply with the provisions of this rule, the inquiring authority

may hold the inquiry ex prate.

(21) (a) Where a disciplinary authority competent to impose any of

the penalties specified in clauses (i) to (iv) of Rule 11 [but not

competent to impose any of the penalties specified in clauses (v) to (ix)

of Rule 11], has itself inquired into or caused to be inquired into the

articles of any charge and that authority, having regard to its own


findings or having regard to its decision on any of the findings of any

inquiring authority appointed by it, is of the opinion that the penalties

specified in clauses (v) to (ix) of Rule 11 should be imposed on the

Government servant, that authority shall forward the records of the

inquiry to such disciplinary authority as is competent to impose the last

mentioned penalties.

(b) The disciplinary authority to which the records are so

forwarded may act on the evidence on the record or may, if it is of the

opinion that further examination of any of the witnesses is necessary in

the interests of justice, recall the witnesses and examine, cross-examine

and re-examine the witnesses and may impose on the Government

servant such penalty as it may deem fit in accordance with these rules.

(22) Whenever any inquiring authority, after having heard and

recorded the whole or any part of the evidence in an inquiry, ceases to

exercise jurisdiction therein, and is succeeded by another inquiring

authority which has, and which exercises, such jurisdiction, the

inquiring authority so succeeding may act on the evidence so recorded

by its predecessor, or partly recorded by its predecessor and partly

recorded by itself:

Provided that if the succeeding inquiring authority is of the opinion

that further examination of any of the witnesses whose evidence has

already been recorded is necessary in the interests of justice, it may

recall, examine, cross-examine and re-examine any such witnesses as

hereinbefore provided.

23(i) After the conclusion of the inquiry, a report shall be prepared

and it shall contain —

(a) the articles of charge and the statement of the imputations

of misconduct or misbehaviour;

(b) the defence of the Government servant in respect of each

article of charge;

(c) an assessment of the evidence in respect of each article of

charge;

(d) the findings on each article of charge and the reasons

therefor.


Explanation.— If in the opinion of the inquiring authority the

proceedings of the inquiry establish any article of charge different from

the original articles of the charge, it may record its findings on such

article of charge:

Provided that the findings on such article of charge shall not be

recorded unless the Government servant has either admitted the facts on

which such article of charge is based or has had a reasonable

opportunity of defending himself against such article of charge.

(ii) The inquiring authority, where it is not itself the disciplinary

authority, shall forward to the disciplinary authority the records of

inquiry which shall include—

(a) the report prepared by it under clause (i);

(b) the written statement of defence, if any, submitted by the

Government. Servant;

(c) the oral and documentary evidence produced in the course

of the inquiry;

(d) written briefs, if any, filed by the Presiding Officer or the

Government servant or both during the course of the

inquiry; and

(e) the orders, if any, made by the disciplinary authority and

the inquiring authority in regard to the inquiry.

COMMENTARY

S Y N O P S I S General

1. Departmental enquiry: what it is.. .................................................................................. 301

2. Department enquiry, a quasi judicial proceeding ........................................................... 302

3. Disciplinary Enquiries, Form and procedure of ............................................................. 303

4. Disciplinary Enquiries: Personal hearing if necessary ................................................... 303

5. Disciplinary proceedings against several employees ...................................................... 303

6. Disciplinary proceedings whether end on attaining the age of superannuation .............. 304

7. Disciplinary proceedings cannot be initiated or continued after retirement ................... 304

8. Fresh enquiry after removal from service ....................................................................... 305

9. Disciplinary action against employee on verge of retirement ......................................... 305


10. Disciplinary action against probationer: Who gave notice terminating his service ........ 306

11. Disciplinary enquiry against civilians in Defence Service ............................................. 306

12. Disciplinary enquiry against judicial officer .................................................................. 307

13. Preliminary enquiry cannot take the place of regular enquiry —

(i) Article 311 of the Constitution does not apply to preliminary enquiry ............. 307

(ii) Preliminary enquiry does not debar regular departmental proceedings ............ 307

14. Criminal and disciplinary proceeding simultaneously ................................................... 307

15. Acquittal or conviction whether bar to enquiry .............................................................. 308

16. Effect of order of acquittal on departmental proceeding ................................................ 309

17. De nova enquiry into charges of which official has been acquitted ............................... 310

18. De nova enquiry where penalty quashed on ground that Enquiry Officer was biased

against delinquent official ...................................................................................................... 310

19. Disciplinary authority whether can order successive enquiries ...................................... 310

20. Re-enquiry when order set aside for not affording reasonable opportunity or on

technical ground ..................................................................................................................... 310

21. Second departmental enquiry on same facts or charges —

(i) When can be made ............................................................................................. 311

(ii) When cannot be made ...................................................................................... 311

22. Whether a Departmental Enquiry can be Ordered Subsequent to the Recording of an

Adverse Annual Confidential Report on the Identical or Substantially on the Same

Materials ................................................................................................................................ 311

23. Executive instruction, breach of ................................................................................. 312

24 . Evidence Act, application of ...................................................................................... 312

25 . Technical rules of evidence do not apply to these proceedings ................................... 312

26. Evidence of co-delinquent can be considered.............................................................. 312

27 Evidence, hearsay: Admissibility of ............................................................................ 313

28. Evidence, whether hearsay .......................................................................................... 313

29. Evidence: (i) Tape-recorded conversation .. ................................................................ 314

(ii) Handwriting expert ................................................................................................ 314

30. Misconduct, to be deemed condoned on promotion .................................................... 315

31. Article 311 of the Constitution, provides protection to persons employed in civil

capacities under the Union or States ...................................................................................... 315

32 Enquiry be held in accordance with the principles of natural justice ......................... 316

33. Natural justice: Principle of ........................................................................................ 316

34. Natural justice: requirement of ................................................................................... 319

35. Natural justice, rules of .............................................................................................. 319

36. Natural justice, non-observance of principles or rules of ........................................... 320

37. Compliance with each of the requirements laid down in the rule: necessary —

(i) Court has to see the procedural irregularity ...................................................... 321


(ii) Court not to re-examine and reassess evidence ................................................ 322

(iii) Principles of interference with departmental enquiry by court ........................ 323

(iv) Perverse findings ............................................................................................. 325

38. Reasonable opportunity, meaning of .......................................................................... 325

39. Departmental enquiry - holding of ............................................................................. 326

40. Departmental enquiry to deter civil from perusing his legal remedies ....................... 326

41. Departmental enquiry not an empty formality ............................................................ 327

42. Departmental proceeding, a two sided affair ............................................................. 327

43. Order sheet be maintained, showing the progress of the inquiry from day to day ..... 327

44. Procedure where statute silent ................................................................................... 327

45. No regular departmental inquiry is required while imposing penalty in certain cases ... 328

Sub-rule (1)

46. (i) No major penalty can be imposed without an enquiry ............................................... 328

47 (ii) Interpretation of expression “as far as may be” in sub-rule (1) ................................ 329

Sub-rule (2)

48 Who should be charged ? ............................................................................................... 329

Sub-rule (3) & (4)

49. Charge-sheet by officer performing current duties ......................................................... 329

50. Charge to be drawn up by competent authority .............................................................. 329

51. Charge should be clear ................................................................................................... 330

52 Charges must be specific, precise and not vague............................................................ 330

53. Necessary particular must be given in charge-sheet ....................................................... 331

54. Charge-sheet should not be issued with a biased and closed mind ................................. 331

55. Charge based on finding of Commission of Inquiry rendered behind the back of

appellant, quashed .................................................................................................................. 331

56. Charge based on the findings and recommendations of Vigilance Deptt. ....................... 332

57. Charge not to be based on suspicion ............................................................................... 332

58. Charge-sheet described as Memo .................................................................................... 332

59. Expression of opinion in charge-memo ........................................................................... 332

60. Mention of proposed punishment in charge-sheet ........................................................... 332

61. Actual service of chargesheet .......................................................................................... 333

62. Delay in service of chargesheet ....................................................................................... 333

63. Judicial review of chargesheet ........................................................................................ 333

64. Malafide chargesheet ...................................................................................................... 335

65. Non-compliance of Rule 14(4) ........................................................................................ 335

66. Non-supply of copy of compliant .................................................................................... 335

67. Non-supply of copy of report, basis of charge ................................................................ 336


68. Non-supply of statement of allegations ........................................................................... 336

69. When copies of proceedings and findings of preliminary enquiry be supplied ............... 337

70. Whether copies of documents shown in the list of documents should be delivered to

delinquent, along with the charge-sheet ................................................................................. 337

71. “Whether desired to be heard in person”, valuable right ................................................. 338

72. Opportunity to explain to be real .................................................................................... 338

73. Rights of employee during enquiry ................................................................................ 338

Sub-rule (5)(a)

74. Revival of proceedings after long lapse of time, dropped .............................................. 338

Sub-rule 5(a) & (b)

75. Disciplinary authority holding enquiry himself, bias of ................................................. 338

76. Enquiry officer, appointment of ...................................................................................... 339

77. Enquiry officer, against whom petitioner has accusation ................................................ 339

78. Enquiry officer, bias of.................................................................................................... 340

79. Enquiry officer who held preliminary enquiry ................................................................ 340

80. Enquiry officer, prejudice of ........................................................................................... 341

81 Enquiry officer to act with detachment ........................................................................... 341

82. Enquiry officer to have open mind .................................................................................. 341

83. Enquiry officer not to cross-examination defence witnesses ........................................... 341

84. Enquiry officer, whether independent ............................................................................. 341

85. Enquiry officer, used his personal knowledge of facts .................................................... 341

86. Director authorised to conduct enquiry reverted as Dy. Director: No jurisdiction to hold

enquiry .................................................................................................................................. 341

Sub-rule 5(c)

87. Legal practitioner, meaning of ........................................................................................ 342

Sub-rule (7)

88. Failing to appear for non-payment of subsistence allowance .......................................... 342

89. Failing to appear for non-payment of certain amount of salary ....................................... 342

Sub-rule (8)

90. Assistance of another Government servant: affording of ................................................ 342

91. Assistance by Govt. servant having two pending disciplinary cases on hand ................. 344

92. Approval of disciplinary authority not necessary ............................................................ 344

93. Assistance by retired Government servant ...................................................................... 344

94. Legal practitioner-engagement of, when can be allowed ................................................ 344

95. Legal Practitioner: Payment of fee .................................................................................. 347

Sub-rule (9)

96. Admission of facts, whether plea of guilty ...................................................................... 347


97. Admission of delinquent officer should be taken as a whole and not only the part

thereof .................................................................................................................................... 347

Sub-rules (11), (12) and (13)

98. Sub-rule (11) is a mandatory provisions.......................................................................... 348

99. Whether Govt. servant can take down notes at the time of inspection under sub-rule

(11)(i) ..................................................................................................................................... 348

100. Not taking part in enquiry and not appearing in enquiry proceedings ........................... 348

101. Access to file relied upon by enquiry officer be allowed .............................................. 348

102. Claim of privilege, grounds for ..................................................................................... 349

103. Privilege cannot be claimed for —

(i) Privilege can be claimed for .............................................................................. 350

(ii) Claim of privilege, affidavit for ........................................................................ 350

104 Documents, withholding of .......................................................................................... 350

105. Documents, supply of copies to public servant ............................................................. 350

106, Whether copies of statements recorded during preliminary enquiry should be supplied

to delinquent Government servant ......................................................................................... 352

107. Exhibiting of document during enquiry......................................................................... 353

Sub-rules (14) and (15)

108. Date and place of hearing be informed to delinquent .................................................... 353

109. Language of inquiry ...................................................................................................... 354

110. Enquiry officer not to record evidence on allegation extraneous to the charge ............. 354

111. Enquiry officer, role of .................................................................................................. 354

112. Consideration of confession .......................................................................................... 355

113. Witness, summoning of, for examination or discovery and production of documents .. 355

114. Witnesses, statements of —

(i) Charge-wise disapproved................................................................................... 356

(ii) Be recorded in presence of delinquent officer .................................................. 356

115. Witnesses, statement of, in criminal Trial ..................................................................... 356

116. Witnesses, statement of, in preliminary enquiry, use of ................................................ 356

117. Witnesses, before police and statement u/s 161 Cr. P.C. ............................................... 357

118. Witnesses, mentioned in list, right to ask for copies of their statements ....................... 357

119. Witnesses and documents not mentioned in the list, production of ............................... 357

120. Witnesses in support of charge, failure to examine material witness ............................ 357

121. Witnesses, adjournment for cross-examination ............................................................. 358

122. Witnesses, cross-examination of - date be fixed ........................................................... 358

123. Witnesses, opportunity be given to delinquent to cross-examine .................................. 358

124. Witnesses, enquiry officer as witness ............................................................................ 358

125. Witnesses, disciplinary authority as witness ................................................................. 358


126. Witnesses, evidence of an accomplice .......................................................................... 358

127. Additional evidence under Rule 14(15) ......................................................................... 359

128. Witnesses, examination after delinquent examined ....................................................... 359

Sub-rules (16) & (17)

129. Sub-rule (16) can be complied with when delinquent takes part in proceedings .......... 360

130. Defence when not required............................................................................................ 360

131. Delinquent cannot claim a particular place for hearing ................................................. 360

132. Defence evidence: opportunity for ................................................................................ 360

133. Defence evidence, right of delinquent officer to produce .............................................. 360

134. Defence evidence, right to produce, denied................................................................... 361

135. Defence witnesses, refusal to summon and examine ..................................................... 361

136. Defence witnesses not examined by Enquiry Officer as they were unwilling to depose

for delinquent officer ............................................................................................................. 362

137.Defence witnesses, cross-examination of, by Enquiry Officer ........................................ 362

138. Defence, when no evidence to support charge .............................................................. 362

139. Examination of delinquent, several times ...................................................................... 362

140. Examination of delinquent and his witnesses before departmental witnesses, irregular 362

141. Material on record; opportunity to explain to be given to delinquent ............................ 362

142. Material collected and relied upon by Enquiry Officer behind the back of delinquent . 362

143. Extraneous matter, collection and placing of it on record ............................................. 363

144. Enquiry Officer relied upon material not placed on record during enquiry ................... 363

145. Statement not recorded during enquiry not to be relied upon ........................................ 363

Sub-rule (18)363

146. Failure to generally question delinquent officer under Sub-rule 18 .............................. 363

Sub-rule (19)

147. Supply to copy of written brief to Government servant, necessary ............................... 364

Sub-rule (20)

148. Ex prate enquiry on refusal of service ........................................................................... 364

149. Delinquent officer did not participate in proceedings.................................................... 364

150. Delinquent failing to appear for non-payment of subsistence allowance ..................... 365

151. Delinquent failing to appear for non-service with any notice ........................................ 365

152. Sub-rule (11) be complied with even in ex prate enquiry .............................................. 365

Sub-rule 21(a)

153. Disciplinary proceedings initiated by authority competent only to inflict minor

penalties ................................................................................................................................. 365

Sub-rule (22)

154. Enquiry de nova on change of enquiry officer .............................................................. 366


155. Inquiry Committee: Change in personnel ...................................................................... 366

Sub-rule (23)

156. Proof required in departmental proceedings .................................................................. 366

157. Findings of enquiry officer should be clear and definite ............................................... 367

158. Finding of enquiry officer, recommendations as to punishment.................................... 367

159. Findings of enquiry officer should be based on some evidence .................................... 367

160. Supply of copy of Enquiry report .................................................................................. 367

GENERAL

1. Department Enquiry: What it is? — A department enquiry under the CCS

(CC&A) Rules is not a criminal trial for the imposition of a punishment. Nor it is a

proceeding in a court of law. It is not even a lis between two parties which is being

decided by a third person. It is only a proceedings instituted by the Government in its

capacity as the employer against his employee in his capacity as the employee for the

satisfaction of the mind of the Government as to whether the employee has committed

misconduct. Such misconduct is merely relevant to the contract of service between the

parties. A.R.R. Deshpande v. Union of India, 1971(2) SLR 776 (Delhi), Bhagat Singh v.

Union of India, 1994(7) SLR 743 (CAT Calcutta); D.P. Bijawat v. Union of India,

1994(7) SLR 102 (CAT New Delhi); S.B. Ramesh v. Ministry of Finance, Govt of India,

1994(6) SLR 183 (CAT Hyderabad); T.V.S. Sarma v. Union of India, 1994(7) SLR 137

(CAT Bombay).

The departmental enquiry before the Tribunal is not the same as prosecution in

a criminal case. State of A.P. v. Chitra Venkata Rao, AIR 1975 SC 2151: 1975 SLJ 772:

1976(1) SLR 653: 1976(2) SCJ 227. See also Krishan Lal v. Union of India, 1993(6)

SLR 610 (CAT New Delhi). Standard of proof in a criminal case and departmental

enquiry is different. Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh, 1994 Supp (3)

SCC 628: 1994(5) SLR 534: 1994(28) ATC 594: 1994(69) FLR 1078: 1995(2) LLJ 633:

1996(2) LLN 451. The inquiry proceedings should not be examined by the court as if it

was hearing an appeal in criminal case. Union of India v. A. Nagamalleshwar Rao, AIR

1998 SC 111: 1998(1) SCC 700: 1998(78) FLR 68: 1998(1) SLR 18: 1998 Lab IC 389:

1998(1) LLN 361. See also Union of India v. B.K. Srivastava, 1998(6) SCC 340: AIR

1998 SC 300: 1997(77) FLR 786: 1998(1) LLJ 431: 1998(1) LLN 340.

2. Department Enquiry, a Quasi-judicial proceeding — The obligation to act

fairly on the part of the administrative authorities was evolved to ensure the rule of law

and to prevent failure of justice. This doctrine is complementary to the principles of

natural justice which the quasi-judicial authorities are bound to observe. It is true that

the distinction between a quasi-judicial and the administrative action has become thin,

as pointed out by Supreme Court as far back as 1970 in A.K. Kraipak v. Union of India,

1969 (2) SCC 262.

Enquiries which were considered administrative at one time are now being

considered as quasi judicial in character. Even an administrative order which involves


civil consequences must be made consistently with the rules of natural justice. State of

Orissa, v. Binapani Dei (Dr. Miss), 1969(1) SCWR 1122: AIR 1970 SC 150: 1970(1)

SCR 457: 19698(2) SCC 262: 1969 SLR 445; Nand Kishore Prasad v. State of Bihar,

AIR 1978 SC 1277:1978(3) SCR 708: 1978(3) SCC 366: 1978 Lab IC 1106: 1978(2)

SLR 46: 1978 SLJ 591. See also Union of India v. K.K. Dhawan, 1993(1) SCR 296:

1993(2) SCC 56: 1993(1) JT 236 (SC): AIR 1993 SC 473: 1993 Lab IC 1028: 1993(2)

ATC 1: 1993(1) Cur LR 415: 1993 SCC (L&S) 325: 1993(1) SLR 700: 1993 AIR SCW

1361: 1993(1) SPJ 396; S. Sundarsan v. Union of India, 1996(8) SLR 347 (SC).

Administrative action is stated to be referable to broad area of Government

activities in which the repositories of power may exercise every class of statutory

function of executive, quasi-legislative and quasi-judicial nature. It is trite law that

exercise of power, whether legislative or administrative, will be set aside if there is

manifest error in the exercise of such power or the exercise of the power is manifestly

arbitrary. See State of U.P. v. Renusagar Power Co., AIR 1988 SC 1737.

At one time, the traditional view in England was that the executive was not

answerable where its action was attributable to the exercise of prerogative power.

Professor De Smith in his classical work “Judicial Review of Administrative Action”

4th Edition at pages 285-287 states the legal position in his own terse language that the

relevant principles formulated by the Courts may be broadly summarized as follows.

The authority in which a discretion is vested can be compelled to exercise that

discretion, but not to exercise it in any particular manner. In general, a discretion must

be exercised only by the authority to which it is committed. That authority must

genuinely address itself to the matter before it; it must not act under the dictates of

another body or disable itself from exercising a discretion in each individual case. In

the purported exercise of its discretion, it must not do what it has been forbidden to do,

nor must it do what it has not been authorized to do. It must act in good faith, must have

regard to all relevant considerations and must not be influenced by irrelevant

consideration, must not seek to promote purposes alien to the letter or to the spirit of

the legislation that gives it power to act, and must not act arbitrarily or capriciously.

These several principles can conveniently be grouped in two main categories: (i) failure

to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes

are not, however, mutually exclusive. Thus, discretion may be improperly fettered

because irrelevant considerations have been taken into account and where an authority

hands over its discretion to another body it acts ultra vires. Indian Railway

Construction Co. Ltd. v. Ajay Kumar, 2003(4) SCC 579: 2003(2) JT 295: 2003(2) SLR

639: 2003(2) LLJ 150.

There is a charge and a denial followed by an inquiry at which evidence is led

and assessment of the material before conclusion is reached. These facets do make the

matter quasi-judicial and attract the, principles of natural justice. Union of India v.

Ramzan Khan (Mohd), 1990 Supp (3) SCR 248: AIR 1991 SC 471: 1991(1) SCC 588:

1990(4) JT 456: 1991(78) FJR 207: 1991(1) ATR 120: 1991(16) ATC 505: 1991(1)

LLN 380: 1990(61) FLR 736: 1991(1) SLR 159: 1991 Lab IC 308: 1991(1) LLJ 29:

1991(1) SLJ 196.


3. Disciplinary Enquiries, Form and procedure of — There is not set form of

disciplinary enquiries. In some cases oral evidence may have to be led when witnesses

are called to give evidence and are offered for cross-examination. But in other cases

that may not be the appropriate mode of enquiry. Where an Income Tax Officer was

charged on the basis of his assessment orders, the various flaws in the assessment were

pointed out to him, his answers recorded and opportunities were given to explain the

circumstances against him, it was held that there can be no compliant on the score that

there was no personal hearing or that reasonable opportunity to defend was not given.

Krishna Chandra Tandon v. Union of India, 1974 SLJ 415: 1974(2) SLR 178: AIR

1974 SC 1589: 1974(4) SCC 374: 1974 Lab IC 1010.

Where the services of a probationer are proposed to be terminated and a

particular procedure is prescribed by the Regulations for that purpose, then the

termination has to be brought about in that manner. The probationer-constable has to be

informed of the grounds on which his services are proposed to be terminated and he is

required to explain his position. The reply is to be considered by the Superintendent of

Police so that if the reply is found to be convincing, he may not be deprived of his

services. Chandra Prakash Shahi v. State of Uttar Pradesh, AIR 2000 SC 1706:

2000(3) SCR 529: 2000(5) SCC 152: 2000(2) SLR 772: 2000(3) SLJ 312: 2000(3) LLN

21: 2000(97) FJR 135.

4. Disciplinary Enquiries: Personal hearing if necessary — When reply filed

by the employee to show cause notice did not state that he desires personal hearing, it

was held that order of termination cannot be held to be vitiated on the ground that

opportunity of personal hearing was not granted. State Bank of India v. Luther

Kondhpan, 1999(9) SCC 268: 2000(1) LLJ 275: 2000(2) LLN 66.

5. Disciplinary proceedings against several employees— It is always

necessary and salutary that common enquiry should be conducted against all the

delinquent officers to avoid multiplicity of proceedings, needless delay from conducting

the same and overlapping abduction of evidence or omission thereof and conflict of

decision in that behalf. Balbir Chand v. Food Corporation of India Ltd., AIR 1997 SC

2229: 1996 Supp (10) SCR 156: 1997(3) SCC 371: 1997(1) SLJ 156: 1997(2) LLJ 879:

1997(77) FLR 267: 1997(3) LLN 82: 1998(79) FLR 494: 1997(1) SLR 756.

In the aforesaid case it has been further held that enquiry should normally be

not split even on the request of the delinquents. It was observed “If one charged officer

cites another charged officer as a witness, in proof of his defence, the enquiry need not

per se be split up even when the charged officers would like to claim an independent

enquiry in this behalf. If that procedure is adopted, normally all the delinquents would

be prone to seek split up of proceedings in their/his bid to delay the proceedings, and to

see that there is conflict of decisions taken at different levels. Obviously, disciplinary

enquiry should not be equated as a prosecution for an offence in a criminal Court where

the delinquents are arrayed as co-accused. In disciplinary proceedings, the concept of

co-accused does not arise. Therefore, each of the delinquents would be entitled to

summon the other person and examine on his behalf as a defence witness in enquiry or

summon to cross-examine any other delinquent officer if he finds him to be hostile and

have his version placed on record for consideration by the disciplinary authority. Under


these circumstances, the need to split up the cases is obviously redundant, time

consuming and dilatory.

6. Disciplinary Proceedings Whether End on Attaining the Age of Superannuation — Disciplinary proceedings cannot continue on the attainment of the

age of superannuation as per Mysore Civil Service Rules — Subha Rao v. State of

Mysore, AIR 1968 Mysore 81: 1968 SLR 135; K.S. Rajasekhraiah v. State of Mysore,

1968 SLR 269: AIR 1968 Mys 206.

In Jagdhari Roy v. State of Bihar, 1969 SLR 152, it was held that in the

absence of an express prohibition in any of the service rules, it cannot be said as a

proposition of law that, merely because an officer has superannuated, all the

departmental proceedings pending against hum must be deemed to have become

ineffective. It was further held that the Mysore case cited is based on service rules in

force in Mysore State and it cannot be applied mechanically in the State of Bihar.

In M. Koteswara Rao v. State of A.P., 1975 Lab IC 1244: 1975(2) SLR 345, it

has been held that disciplinary enquiry cannot be initiated or continued after retirement

of a Government servant. However, in order to prevent a public servant escaping

disciplinary action on attaining the age of superannuation, Fundamental Rule 56-C was

amended and it is now provided that a Government servant under suspension on a

charge of misconduct should not be required or permitted to retire on his reaching the

date of compulsory retirement, but should be retained in service until the enquiry into

the charge is concluded and the final order is passed thereon by the competent

authority. See State of Punjab v. Khemi Ram, AIR 1970 SC 214: 1970(2) SCR 657:

1969(3) SCC 28: 1970 Lab IC 271: 1969 SLR 833.

Supreme Court, in B.J. Shelat v. State of Gujarat, 1978(2) SCJ 505:AIR 1978

SC 1109: 1978(3) SCR 553: 1978(2) SCC 202: 1978 SLJ 503: 1978(2) SLR 88, a case

under Bombay Civil Services Rule 161, read with Fundamental Rule 56(c), held that

permission to retire can be withheld if the Government servant is under suspension or

the departmental proceedings are pending or contemplated against him.

The appellant showed undue favour on the assessee for the purpose of income

tax violating the conduct rules under his judicial functions. No immunity is available

from disciplinary proceedings. Union of India v. K.K. Dhawan, 1993(1) SCR 296:

1993(2) SCC 56: 1993(1) JT 236 (SC): AIR 1993 SC 473: 1993 Lab IC 1028: 1993(2)

ATC 1: 1993(1) Cur LR 415: 1993 SCC (L&S) 325: 1993(1) SLR 700: 1993 AIR SCW

1361: 1993(1) SPJ 396.

7. Disciplinary Proceedings Cannot be Initiated or Continued After Retirement — The law is now well settled that disciplinary enquiry cannot be initiated

or continued after the retirement of a Government servant. K.S. Rajasekhraiah v. State

of Mys, AIR 1968 Mys 206: 1968 SLR 269; Nawal Kishore v. State of Rajasthan, AIR

1967 Raj 82; M. Koteswara Rao v. State of A.P., 1975 Lab IC 1244: 1975(2) SLR 345;

B.J. Shelet v. State of Gujarat, 1978 SLJ 503: 1978(2) SLR 88: AIR 1978 SC 1109:

1978(3) SCR 553: 1978(2) SCC 202: 1978 Lab IC 824; Mukhtiar Chand Dhir v. State of

Punjab, 1982(1) SLR 889. See also S. Sundarsan v. Union of India, 1996(8) SLR 347 (SC).


There is no provision in CCS (CCA) Rules either to initiate or to continue the

departmental proceedings against an erstwhile Government servant who is retired or has

been compulsorily retired. However, under Central Civil Service (Pension) Rules, 1972,

it is possible to continue the departmental proceedings or to initiate the proceedings

under certain conditions. Under the said Rules the President of India can withhold

pension or recover pecuniary loss caused to Government if a pensioner is found guilty

of grave misconduct or negligence during the period of his service. In case of an event

more than four years old on the date of retirement, a departmental proceeding cannot be

instituted or continued after retirement under Rule 9(2) of the Pension Rules, 1972.

O.P. Gupta v. Union of India, 1981(3) SLR 778; Also see C. Kalyanam v. Government

of Tamil Nadu, 1982(1) SLR 25.

8. Fresh Enquiry After Removal from Service — Enquiry was held as a

result of which petitioner was removed from service. Petitioner received a memo

intimating him that it was proposed to hold a fresh enquiry. The petitioner objected to

fresh enquiry. He requested that before holding the fresh enquiry, the order of his

removal be set aside and he be reinstated. The petitioner thereafter did not participate in

any fresh enquiry. The very fact that the State had decided to hold a fresh enquiry

shows that the State had come to the conclusion that the previous enquiry was not

proper. The necessary consequence should have been to set aside the previous enquiry

because without doing so no fresh enquiry could be conducted under the rules. The

petitioner was justified in not participating in the fresh enquiry and insisting that the

order of his removal should be set aside before fresh enquiry is held. Dina Nath v.

District Medical Officer (Civil Surgeon), 1982(2) SLJ 691.

9. Disciplinary Action Against Employee on Verge of Retirement —

Retirement in service under F.R. 56(a) for the purpose of enquiry was not proper and

the extension of service was illegal. State of W.B. v. Nripendra Nath Bagchi, 1966(1)

SCWR 169: AIR 1966 SC 447: 1966(1) SCR 771: 1968(1) LLJ 270: 1966(2) SCJ 59.

There can be no doubt that if disciplinary action is sought to be taken against a

Government servant, it must be done before he retires. If a disciplinary enquiry cannot

be concluded before the date of such retirement, the course open to the Government is

to pass an order of suspension and refuse the public servant to retire and retain him in

service till such enquiry is completed and a final order is passed. State of Punjab v.

Khemi Ram, AIR 1970 SC 214: 1970(2) SCR 657: 1969(3) SCC 28: 1970 Lab IC 271:

1969(II) SCWR 718: 1969 SLR 833.

In one case, in the service rules no specific provision was made for deducting

any amount from the provident fund consequent to any misconduct determined in the









666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999










1999(1) AD(Delhi) 649: 1999(1) LLJ 871.





10. Disciplinary Action Against Probationer: Who Gave Notice Terminating his Services — The appellant who was a probationer gave a notice to the

Government terminating his service. Ever since he served the notice as he was not in

service of the Government. Therefore, it was not open to the Government to take any

disciplinary proceedings against him. V.P. Gindroniya v. State of M.P., 1970(I) SCWR

294: AIR 1970 SC 1494: 1970(3) SCR 448: 1970(1) SCC 362: 1970 Lab IC 1332: 1970

SLR 329: 1970(2) SCJ 573.

11. Disciplinary Enquiry Against Civilians in Defence Service — The CCS,

(CCA) Rules, 1965, are applicable when disciplinary proceedings are taken. They do

not make disciplinary proceedings under the rules incumbent or obligatory whenever

the service of person covered by these rules are terminated. The obligation to follow the

procedure for punishment laid down in the rules flows from the provisions of Article

311. And as the opening words of Article 310 show, the doctrine of office held at the

pleasure of the President does not apply to cases covered by Article 11. A civilian in

defence service is not entitled to the protection of Article 311, the only effect of the

1965 Rules upon his case is that they could be applied if disciplinary proceedings are

taken against him as the holder of a post “connected with defence”. In other cases of

such servants, where no such disciplinary proceedings are instituted, the 1965 Rules,

governing procedure for punishments to be imposed, will not apply at all. The legal

obligation to apply them to every case of punishment, following from Article 311, is

confined to holder of posts covered by Article 311. Union of India v. K.S.

Subramanian, AIR 1976 SC 2433: 1977(1) SCR 87: 1976(3) SCC 677: 1976 Lab IC

1551: 1976 SLJ 539: 1976(2) SLR 519; O. Ramchandra Reddy v. Director, Defence

Research & Development Laboratory, 1980(1) SLR 490; V.Y. Thomas v. Commandant,

A.D.C., 1982(2) SLR 39. See also Krishan Lal v. Union of India, 1993(6) SLR 610

(CAT New Delhi); Ranjit Kumar Majumdar v. Union of India, 1995(5) Supp SCR 717:

1996(1) SCC 51: 1995(1) SCC 51: 1995(8) JT 359: 1996 SCC (L&S) 255: 1996(22)

ATC 200: 1996(1) SLR 35 (SC).


Departmental proceedings against civilian Government servants in Defence are

to be held according to service rules. Sham v. Director, Military Farms, AIR 1968 Pun

312 (FB); P. Lal Dharmalingam v. Chief of General Staff, 1975 SLJ 247.

12. Disciplinary Enquiry Against Judicial Officer — Where the High Court

requested the Government to depute Director of Vigilance to hold enquiry, it failed to

discharge the duty of preserving control and acted in total disregard of Article 235,

Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 814: 1975(3) SCC

241: 1974 Lab IC 1380: 1974(2) SLR 701. High Court alone can hold enquiry against a

member of the Judicial Service and the Government cannot do so. B.R. Guliani v. P&H

High Court, 1975(1) SLR 703 (FB); Baldeo Raj Guliani v. Punjab & Haryana High

Court, AIR 1976 SC 1633: 1976 SLJ 601: 1976(2) SLR 758; Chief Justice, A.P. v.

L.V.A. Dikshitulu, AIR 1979 SC 193: 1979(2) SCC 34: 1979(1) SLR 1: 1978 Lab IC

1672; P. Kumara Menon v. State of Kerala, 1982(1) SLR 104.

13. Preliminary Enquiry Cannot Take the Place of Regular Enquiry —

Preliminary enquiry made in presence of civil servant and his explanation taken as well

as his defence. Such a preliminary enquiry cannot take the place of a regular

departmental enquiry expressly provided under the rules. Removal from service set

aside. T.K. Singh v. State of Bihar, 1969 SLR 18; For a regular enquiry the elaborate

procedure prescribed by Rule 14 has to be followed. P. Dharmalingam v. Chief of the

General Staff, Army Headquarters, 1975 SLJ 247.

(i) Article 311 of the Constitution does not Apply to Preliminary Enquiry

— Preliminary enquiry is for the purpose of deciding whether or not departmental

enquiry is necessary. Article 311 does not apply to such proceedings. Chamak Lal

Chiman Lal Shah v. Union of India, AIR 1964 SC 1854: 1964(5) SCR 190; Ram Subhag

v. Union of India, 1988(4) SLR 139 Pat (DB).

(ii) Preliminary Enquiry does not Debar Regular Departmental

Proceedings — If an enquiry is held, at a particular stage to determine whether regular

proceedings be drawn up or started, it does not debar a departmental trial. R.C. Sharma

v. Union of India, AIR 1976 SC 2037: 1976 Supp SCR 580: 1976(3) SCC 574: 1976

Lab IC 133: 1976(2) SLR 265: 1976 SLJ 516. See also Bhagat Singh v. Union of India,

1994(7) SLR 743 (CAT Calcutta).

14. Criminal and Disciplinary Proceedings Simultaneously — Not

frequently a departmental proceeding and a criminal trial are simultaneously taken. The

Courts have held that it would be proper in such a case for the departmental tribunal to

stay the proceedings pending decisions by the Criminal Court. while it is not obligatory

that the departmental proceedings should be stayed, it is expedient to do so in the

interest of fairplay. That does not mean, however, that the finding in the criminal trial

must necessarily be adopted by the departmental tribunal. Khushi Ram v. Union of

India, 1973(2) SLR 564. See also Rama v. Superintendent of Police, AIR 1967 Mys

220; Delhi Cloth & General Mills v. Khushal Bhan, AIR 1960 SC 706: 1960(3) SCR 1:

1960 Crl LJ 1020, New Victoria Mills v. Presiding Officer, AIR 1970 All 210.


Criminal proceedings under the Indian Penal Code, Section 468 and 481 and

departmental proceedings for the same misconduct can proceed simultaneously. There

is no bar as such.

(I) Bhagaban Chowbey v. Union of India, 1987(4) ATC 153 (CAT

All).

(ii) M.M. Rubber Co. v. S. Natarajan, 1986(1) SLJ 256 Mad (Reviews

case-law)

(iii) Sufal Kumar Naskar v. Union of India, 1991(1) SLR 658, 662-664

(CAT Cal) (reviews case-law)

(iv) Nepal Chandra v. Union of India, 1988(1) SLJ 165.

Departmental proceedings and criminal proceedings can go on together, unless

there is a stay order in operation. Petitioner was charged with embezzlements of store

brass cups. Departmental proceedings, as well as criminal proceedings were initiated

against him. He was acquitted in criminal proceedings, but dismissed departmentally.

Dismissal was held proper. Laxmi Prasad v. Union of India, 1989(1) SLR (CAT

Jabalpur).

S.K. Mal Lodha, J., in Jagdish Prasad Khatri v. State of Rajasthan, 1980(1)

SLR 225, after going through the various decisions summarised the law thus: “the

disciplinary proceedings against a Government servant need not always be stayed in

respect of a charge, pending the trial of a criminal case regarding the same charge. In

disciplinary proceedings, the question involved is whether employee is guilty of the

charge, on which it is proposed to take disciplinary action. The power of taking such

action is vested only in Disciplinary Authority and civil and criminal Courts have no

such power. Departmental inquiry into the charges against a Government servant can

proceed despite the fact that in inquiry into the same charge is pending before a civil or

criminal Court. In case of grave nature or involving complicated question of fact or law,

it may be advisable to wait for the verdict of a criminal court.”

15. Acquittal or Conviction Whether Bar to Enquiry — It is settled law that

where an employee has been convicted or acquitted by a criminal court of any offence

under the Penal Code, there is no legal or Constitutional bar on the same set of facts to

the departmental inquiry being conducted against him after affording reasonable

opportunity. See K.Srinivasa Rao v. Director of Agriculture, A.P., 1971(2) SLR 24;

Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269; Sham Singh v.

D.I.G. Police, AIR 1965 Raj 140; Krishna Murthy v. Chief Engineer, S.Rly., AIR 1967

Mad 315; Nand Kishore v. State of Bihar, AIR 1967 Pat 133; Khizar Mir v. Director,

Fisheries, 1970 SLR 632; Gurdev Singh v. State of Punjab, 1970 SLR 885; M. Nissar

Ahmed v. State of Mysore, 1971(2) SLR 311.

In R.P. Kapur v. Union of India, AIR 1964 SC 787: 1964(5) SCR 431: 1966(2)

LLJ 164, the Supreme Court had observed: “If the trial of the criminal charges result in

conviction, disciplinary proceedings are bound to follow against the public servant so

convicted, even in case of acquittal proceedings may follow where the acquittal is other

than honourable.”


In Bhagwat Charan v. State of U.P., 1973 SLJ 448: 1973(2) SLR 238 and

Rajendra Kumar Paul v. Union of India, 1976(2) SLR 295, it was held that if a person

has been honourably acquitted by the criminal court, then departmental proceedings on

the basis of the same charges are not competent. Full Bench of Allahabad High Court in

Kunwar Bahadur v. Union of India, AIR 1969 All 414 (FB), held that, where conviction

is set aside on appeal departmental enquiry can be held. The proposition that acquittal

in a criminal case does not operate as an absolute bar to a departmental proceeding is

now firmly established by authoritative pronouncements and needs no reiteration. Sri

Gurunath Pradhan v. State of Orissa, 1979(2) SLR 118; see also Narayan Rao v. State

of Karnataka, 1980(3) SLR 182; Mandal Dutt v. Rajasthan State Road Transport

Corporation, 1980(3) SLR 371.

A Division Bench of Kerala High Court in D.I.G. of Police v. Sankaran,

1982(2) SLJ 537 said, “We once again desire to point out that there would have been no

bar to holding disciplinary proceedings on the same set of facts merely because a

Criminal Court had in a prosecution found in favour of the officer charged with the

offence. But the position is different when the rule making authority has chosen to

incorporate rule creating an express bar in continuing such proceedings”.

16. Effect of Order of Acquittal on Departmental Proceeding — The

disciplinary authority in departmental proceedings does not violate any rule of law or

any other principle of law, when it chooses to ignore the findings of the criminal court

and decides to act on the evidence led before him, and ultimately comes to the

conclusion that such officer is not fit to be retained in service in spite of his acquittal by

the criminal court. He also does not violate any principle of natural justice merely by

ignoring such findings after giving full opportunity to the delinquent to have his say.

Bhaurao v. State of Maharashtra, 1973 SLJ 92 Bombay: 1972 SLR 699; Narayana Rao

v. State of Karnataka, 1980(3) SLR 182: 1981(1) SLJ 18; Also, see Adi Pherozshah v.

H.M. Seervai, AIR 1971 SC 385: 1971(1) SCR 863: 1970(2) SCC 484, wherein it was

held that findings of any criminal court ordinarily do not operate as res judicata in any

civil proceedings.

Petitioner was acquitted in criminal proceedings. Disciplinary proceedings

were continued. Nature and scope of the criminal proceedings are different from

departmental proceedings. Order of acquittal in criminal proceedings cannot ipso facto

conclude departmental proceedings. Nelson Motis v. Union of India, 1992(1) Supp SCR

325: AIR 1992 SC 1981: 1992(4) SCC 711: 1992(5) JT 511: 1992(3) SLJ 65: 1992(5)

SLR 394: 1992(2) ATR 612:1992 Lab IC 2037:1993(23) ATC 382: 1992 AIR SCW 2304.

If the delinquent officer is acquitted in the criminal case whether or not the

departmental inquiry pending against him would have to continue. This is a matter

which is to be decided by the department after considering the nature of the findings

given by the criminal court. Normally where the accused is acquitted honourably and

completely exonerated of the charges it would not be expedient to continue a

departmental inquiry on the same charges or grounds of evidence, but the fact remains,

however, that merely because the accused is acquitted, the power of the authority

concerned to continue the departmental inquiry is not taken away nor its discretion in

any way fettered. Corporation of the City of Nagpur v. Ram Chamdra, 1981(3) SCR 22:


AIR 1984 SC 626: 1981(2) SCC 714:1981(2) SLR 274 (SC): 1984 Lab IC 194. See also

Mohendra Kumar Pradhan v. State of Orissa, 1988(4) SLR 416 Ori, Devi Ram Saini v.

State of Haryana, 1991(2) SLR P&H.

17. De Nova Enquiry into Charges of Which Official had been Acquitted —

The fundamental principle viz. that no one shall be punished or put in peril twice for the

same matter is applicable even to orders passed in departmental enquiries. S.V.G.

Iyengar v. State of Mysore, AIR 1961 Mys 37; Prakash Nath Saidha v. Financial

Commissioner, 1972 SLR 601 Punjab; Hridaya Narayan Prasad v. State of Bihar,

1975(1) SLR 232; A.Gopala Rao v. Post Master General, Hyderabad, Andhra Circle,

1979(2) SLR 370. De nova enquiry is permissible when the impugned order is set aside

for not affording reasonable opportunity, or conducting the disciplinary proceedings in

a manner contrary to law and opposed to principles of natural justice or on any

technical ground. See Devendra Pratap v. State of U.P., AIR 1962 SC 1334: 1962

Supp(1) SCR 315: 1962(2) SCJ 282; Abdul Wajeed v. State of Karnataka, 1981(1) SLR

454. See also Amal Kumar Roy v. Union of India, 1988(1) SLR 330 (CAT Cal); M.

Kolandri Gounder v. Divisional Engineer, T.N.E.B. Thurainur, 1997(1) SLR 467 Mad.

18. De Nova Enquiry Where Penalty Quashed on Ground that Enquiry

Officer was Biased Against Delinquent Official — A departmental enquiry had been

instituted against the petitioner on a charge that he had misbehaved with a lady police

constable. On the basis of the findings recorded in the said inquiry, the petitioner was

removed from service. The petitioner filed a suit that the enquiry officer was biased

against him and hence the findings recorded by him were in violation of the principles

of natural justice. The said plea was accepted and the suit was decreed. Order of

removal was set aside. The order was confirmed in first and second appeals. Under such

circumstances it is competent for the state to hold a de nova departmental enquiry into

the charge as the Courts had not gone into the merits of the charge and had only set

aside the proceedings on the ground of procedural irregularity. Mahadev Narasappa v.

State of Karnataka, 1981(2) SLJ 421: 1982(1) SLR 656.

19. Disciplinary Authority Whether can Order Successive Enquiries —

Rule 15(1) of the CCS (CCA) Rules, 1957 [which corresponds to present Rule 14(1), on

the face of it really provides one inquiry but it may be possible if in a particular case

there has been no proper enquiry because some serious defect has crept into the inquiry

or some important witnesses were not available at the time of the inquiry or were not

examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer

to record further evidence. But there is no provision in Rule 15 (present Rule 14) for

completely setting aside previous inquiries on the ground that the report of the Inquiry

Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary

Authority has enough powers to reconsider the evidence itself and come to its own

conclusion. K.R.Deb v. Collector of Central Excise, 1971(1) SCWR 691: AIR 1971 SC

1447: 1971 Supp SCR 375: 1971(2) SCC 102: 1971(1) SLR 29: 1971 Lab IC 945. See

also Ch. Jagi Raju v. Bank of India, 1996(5) SLR 627 AP.

20. Re-inquiry When Order Set Aside for not Affording Reasonable Opportunity or on Technical Ground — It is settled law that where the Civil Court or

the High Court under Article 226 set aside the order of dismissal or removal on the


ground that the Government servant was not afforded reasonable opportunity under

Article 311(2), he can once again be proceeded against by the departmental authorities

for the charges levelled against him on the same set of facts after affording reasonable

opportunity. Where the Civil Court or High Court sets aside the order of departmental

authority on technical grounds, the re-enquiry into the same charges on the same set of

facts after following the contract procedure and affording opportunity to the employee

can be made. K. Srinivasa Rao v. Director of Agriculture, A.P., 1971(2) SLR 24 (AP):

1971 Lab IC 778; Anand Narain Shukla v. State of M.P., AIR 1979 SC 1923: 1980(1)

SCR 196: 1980(1) SCC 252: 1979 Lab IC 1214: 1979(2) SLR 288: 1979 SLJ 528;

Union of India v. M.B. Patnaik, 1981(2) SCR 817: 1981(2) SCC 159: 1981(1) SLR 377:

1981 Lab IC 858: AIR 1981 SC 858. In Union of India v. M.B. Patnaik, 1981(1) SLJ

400, the Supreme Court relied on its earlier decision in Anand Narain Shukla”s case but

held that it would be inequitable to hold fresh inquiry after a long lapse of time.

21. Second Departmental Enquiry on Same Facts or Chagres - (I) When

can be made — See note 14, 14-A, 16.

(ii) When cannot be made—

In the absence of a specific rule, once a departmental enquiry is over and a

public servant is exonerated of the charges on merits, no second departmental inquiry

on the same facts can be ordered. K. Srinivasa Rao v. Director of Agriculture, A.P.,

1971(2) SLR 24 (AP): 1971 Lab IC 778; Prakash Nath Saidha v. Financial

Commissioner, 1972 SLR 601; Sanjib K. Sen v. Director of Admin., 1974(2) SLR 478:

1974 SLJ 692; Hridaya Narain Prasad v. State of Bihar, 1975(1) SLR 232; Collector of

Customs v. Rebati Mohan Chatterjee, 1976(2) SLR 897; State of Assam v. J.N. Roy,


1; R.N. Atri v. Union of India, 1979 SLJ 12: 1979(1) SLR 527; Ganga Singh v. State of

Punjab, 1982(2) SLR 593.

An enquiry was held as a result of which warning had been issued to the

petitioner. On the same charges the enquiry proceedings were again started. It was

stated on behalf of the state that the earlier was not a formal enquiry but only a fact

finding enquiry and the warning issued was not proper. Obviously, the petitioner cannot

be punished for the second time for the same lapse or on the same charges. P.Kumari v.

State of Punjab, 1982(1) SLR 241.

Disciplinary authority dropped the charges which had been initially framed.

The dropping was on technical ground. Later, the second proceeding was initiated. It

was held that it was not prohibited as per Rule 14, CCS (CC&A) Rules. P. Mallaiah v.

S.D.O., Telecommunication, 1982(2) SLR 282 (CAT Hyderabad).

22. Whether a Departmental Enquiry can be Ordered Subsequent to the

Recording of an Adverse Annual Confidential Report on the Identical or Substantially on the Same Materials — The answer to the question passed was

returned in the affirmative and it was held that a departmental enquiry can lawfully be

ordered subsequent to the recording of an earlier adverse annual confidential report, on

materials which may substantially be the same. Puran Singh v. State of Punjab, 1981(1)


SLR 338: 1981(1) SLJ 586; Bhajan Singh v. Bahal Singh, 1976 SLR 601 and Kartar

Singh v. State of Haryana, 1973 Cur LJ 36 overruled.

23. Executive Instructions, Breach of — Executive instructions regarding

departmental enquiries are not mandatory but obligatory. Breach of these is not

justifiable. Bhupendra Singh v. State of Haryana, AIR 1968 Pun 406. For other view,

see Shayam Kumar v. Union of India, 1982(1) SLR 845: 1981(2) SLJ 337.

24. Evidence Act, Application of — (I) Evidence Act has no application to

enquires conducted by Tribunals. Union of India v. T.R. Verma, AIR 1957 SC 882:

1958 SCR 499: 1958 SCJ 142; State of Mysore v. Shivabassappa, AIR 1963 SC 375:

1963(2) SCR 943:1964(1) LLJ 24: 1963(2) SCJ 104. See also A.V. Krishnamurthy v.

Government of T.N., 1985(1) SLR 773 Mad (DB); B.B. Godhari v. State of Gujarat,

1986(2) SLR 19 Guj.

(ii) It may be that in disciplinary proceedings, the technicalities of criminal law

cannot be invoked, and the strict mode of proof prescribed by the Evidence Act may not

be applied with equal vigour, but the charge framed against the public servant must be

held to be proved before any punishment can be imposed on him. State of Madras v.

A.R. Srinivasan, 1966(II) SCWR 524: AIR 1966 SC 1827: 1967(15) FLR 104: 1967(1)

SCJ 855.

25. Technical Rules of Evidence do not Apply to These Proceedings — The

rules of natural justice do not demand strict compliance with the procedure obtaining in

regular Courts of Law and the technical rules of evidence do not apply to such

proceedings. Basant Kumar Jain v. Union of India, 1969 DLT 599 Delhi; U.R.Bhatt v.

Union of India, AIR 1962 SC 1344: 1962 Supp(1) SCR 315: 1962(2) SCJ 282: 1962(1)

LLJ 266; Ramesh Chandra v. Union of India, AIR 1967 MP 81; K.L.Shinde v. State of

Mysore, 1976 SLJ 468: 1976(2) SLR 102 & 260: AIR 1976 SC 1080: 1976(3) SCR 913:

1976(3) SCC 76; State of Haryana v. Rattan Singh, AIR 1977 SC 1512: 1977(2) SCC

491: 1977 Lab IC 845: 1977(1) SLR 750: 1977 SLJ 408; T.K. Joseph v. Appellate

Tribunal, 1981(2) SLR 787; K.K. Bali v. Comptroller and Auditor General, 1982(2)

SLR 112; State of Tamil Nadu v. M.A. Waheed Khan, 1998(8) SCC 723: 1999(3) LLJ

710; Lalit Popli v. Canara Bank, 2003(3) SCC 583: 2003(2) LLJ 324. The only

requirement of law is that the allegation against the delinquent officer must be

established by such evidence acting upon which a reasonable person acting reasonably

and with objectivity may arrive at a finding upholding the gravamen of the charge

against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of

guilt even in departmental enquiry proceedings. Bank of India v. Degala

Suryanarayana, AIR 1999 SC 2407: 1999(3) SCR 824: 1999(5) SCC 762: 1999(4) SLR

292: 1999(2) LLJ 682: 1999 Lab IC 2819: 1999(3) LLN 532: 1999(82) FLR 1004:

1999(95) FJR 477: 1999(3) SCJ 168.

26. Evidence of co-delinquent can be considered— In a departmental

enquiry, the question, whether or not any delinquent officer is co-accused with other

does not arise. That would arise in a prosecution laid for officer under the IPC or

Prevention of Corruption Act. The evidence recorded in the departmental enquiry

stricto senso is not evidence as per the provisions of the Evidence Act. Therefore, the

statement of Palairam also formed part of the record which could be taken into account


in adjudging the misconduct against the appellant. Vijay Kumar Nigam v. State of

Madhya Pradesh, AIR 1997 SC 1358: 1996 Supp (8) SCR 544: 1996(11) SCC 599:

1997(1) SLR 17: 1997(1) CLT 263(SC): 1997(2) LLN 585: 1997(77) FLR 7: 1997(91)

FJR 84.

27. Evidence, Hearsay: Admissibility of — It is well settled that in a domestic

enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act

may not apply. All materials which are logically probative for a prudent mind are

permissible. There is no allergy to hearsay evidence provided it has reasonable nexus

and credibility. State of Haryana v. Rattan Singh, 1977 SLJ 408: 1977(1) SLR 750:

AIR 1977 SC 1512: 1977(2) SCC 491: 1977 Lab IC 845; Zonal Manager, LIC v. Mohan

Lal Saraf, 1978(2) SLR 868; State of Haryana v. Ram Chander, 1976 SLJ 689: 1976(2)

SLR 690. See also State of Haryana v. Mohan Singh, 1985(2) SLR 116 P&H.

28. Evidence, Whether Hearsay — Section 60 of the Indian Evidence Act lays

down that oral evidence must be direct. If it refers to a fact which could be heard, it

must be the evidence of a witness who says he heard it. The evidence before the court

can be divided into original and unoriginal. The original is that which a witness reports

himself to have seen or heard through the medium of his own senses. Unoriginal, also

called derivative, transmitted, second-hand or hearsay, is that which a witness is merely

reporting not what he himself saw or heard, not what has come under the immediate

observation of his own bodily senses, but what he had learnt respecting the fact through

the medium of a third person. Hearsay, therefore, properly speaking is secondary

evidence of any oral statement. Balram Prasad Agrawal v. State of Bihar, AIR 1997 SC

1830: 1996 Supp (9) SCR 752: 1997(9) SCC 338: 1997(1) Crimes 10 (SC): 1997 CrLJ

1640: 1997(2) CCR 86(SC): 1997(1) DMC 161: 1997 SCC(Cr) 612.

The word “hearsay” is used in various senses. Sometimes it means whatever a

person is heard to say; sometimes it means whatever a person declares on information

given by some one else. (See Stephen on Law of Evidence).

The Privy Council in the case of Subramaniam v. Public Prosecutor, 1956(1)

WLR 965 observed: “Evidence of a statement made to a witness who is not himself

called as a witness may or may not be hearsay. It is hearsay and inadmissible when the

object of the evidence is to establish the truth of what is contained in the statement. It is

not hearsay and is admissible when it is proposed to establish by the evidence, not the

truth of the statement but the fact that it was made. The fact that it was made quite apart

from its truth, is frequently relevant in considering the mental state and conduct

thereafter of the witness or some other persons in whose presence these statements are made.

Where the respondent sought to establish in the domestic enquiry that

complainant had made a verbal complaint against the delinquent official in the presence

of the four witnesses and the evidence of these four witnesses is direct as the complaint

is said to have been made by complainant in their presence and hearing; it is not

hearsay. J.D. Jain v. Management of State Bank of India, AIR 1982 SC 673: 1982(2)

SCR 227: 1982(1) SCC 143: 1982 SCC(Cr) 122: 1982 Lab IC 356: 1982(2) SLJ 96:

1982(1) SCJ 176.


Presumption of genuineness attached to newspaper reports cannot be treated as

proof of the facts stated therein. Therefore statements of fact in news papers are merely

hearsay. Ravinder Kumar Sharma v. State of Assam, AIR 1999 SC 3571: 1999 Supp (2)

SCR 339: 1999(7) SCC 435; The contents of such evidence are required to be proved

being secondary evidence. Quamarul Islam v. S.K. Kanta, AIR 1994 SC 1733: 1994(1)

SCR 210: 1994(1) JT 452.

Allegation that the Bus Conductor recovered fare from the passenger but did

not issue tickets. None of the passengers examined in the course of inquiry nor

checking staff recorded any statement from any of the passenger. Findings of guilt

recorded by the Inquiry Officer on the basis of such hearsay evidence is a case of “no

evidence” and termination on such report is illegal. State of Haryana v. Bikar Singh,

2002(2) SLR 341 P&H.

29. Evidence: (i) Tape Recorded Conversation — A previous statement,

made by a person and recorded on tape, can be used not only to corroborate the

evidence given by the witness in Court but also to contradict the evidence given before

the Court, as well as to test the veracity of the witness and also to impeach his

impartiality. Apart from being used for corroboration, the evidence is admissible in

respect of the other three mentioned matters, under Section 146(1), Exception 2 to

Section 158 and Section 155(3) of the Evidence Act. N. Shri Rama Reddy v. Shri

V.V.Giri, 1970(1) SCWR 872: AIR 1971 SC 1162: 1971(1) SCR 399: 1970(2) SCC 340:

1971(1) SCJ 483. Where the tape recording could not be deciphered, and was a

meaningless jargon, it was not worth reliance. Khembu Ram v. State, 1971 Simla Law

Journal 289.

(ii) Handwriting expert— Evidence of the identity of handwriting is dealt

with in three Sections of the Evidence Act. They are Sections 45, 47 and 73. Both under

Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific

comparison and in the latter on the basis of familiarity resulting from frequent

observations and experiences. In both the cases, the Court is required to satisfy itself by

such means as are open to conclude that the opinion may be acted upon. Irrespective of

an opinion of the Handwriting Expert, the Court can compare the admitted writing with

disputed writing and come to its own independent conclusion. Such exercise of

comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections

45 and 73 are complementary to each other. Evidence of Handwriting Expert need not

be invariably corroborated. It is for the Court to decide whether to accept such an

uncorroborated evidence or not. It is clear that even when experts” evidence is not

there, Court has power to compare the writings and decide the matter. Lalit Popli v.

Canara Bank, 2003(3) SCC 583: 2003(2) LLJ 324.

However in another case it has been held that comparison of hand writings by

the Inquiry officer does not amount to proof even though the degree of proof required in

Disciplinary Proceedings is not of that standard required in criminal case but the

suspicion cannot be substituted for proof even in departmental enquiry. Ministry of

Finance v. S.B. Ramesh, 1998(3) SCC 227: AIR 1998 SC 853: 1998(78) FLR 700:

1998(1) SLR 618: 1998(2) SLJ 67: 1998 Lab IC 623: 1998(1) LLN 968.


30. Misconduct, to be Deemed Condoned on Promotion — It is well settled

that a master cannot impose any punishment on a servant for a misconduct which he

had condoned. If the lapse or misconduct is one which is known to the authority before

the person is promoted and not one which comes to light subsequent to the promotion,

and if the authority concerned knowing of this lapse or misconduct promotes the civil

servant without any reservation, then it must be taken that the lapse or misconduct has

been condoned. Penalty cannot be imposed. L.W. Middleton v. H. Playfair, AIR 1925

Cal 87; District Council, Amraoti v. Vithal Vinayak Bapat, AIR 1941 Nag 125; Lal

Audhraj Singh v. State of M.P., 1968 SLR 88: AIR 1967 MP 284; Collector of Customs

v. Rebati Mohan Chatterjee, 1976(2) SLR 897; Mohammad Habibul Haque v. Union of

India, 1978(1) SLR 637; Union of India v. Md Habibul Haque, 1978(1) SLR 748.

Kapileshwar Paswan v. G.M., North Eastern Railway, 1989(5) SLR 799 (CAT Pat).

The Supreme Court has however set the matter at rest and held that an

employee/officer who is required to be considered for promotion, despite the pendency

of preliminary inquiry or contemplated inquiry if having found fit promoted, the

promotion so made would not amount to condonation of misconduct which is subject

matter of the inquiry. State of Madhya Pradesh v. R.N. Mishra, AIR 1997 SC 3548:

1997 Supp (4) SCR 145: 1997(7) SCC 644: 1997(77) FLR 582: 1997(91) FJR 683:

1997(5) SLR 385: 1998(1) LLJ 436: 1999(1) SLJ 70: 1998 Lab IC 25.

31. Article 311 of the Constitution, Provides Protection to Persons Employed in Civil Capacities Under the Union or a State — Article 311 of the

Constitution lays down:

Article 311. Dismissal, removal or reduction in rank of persons employed in

civil capacities under the Union or a State — (1) No person who is a member of a civil

service of the Union or an all India service or a civil service of a State or holds a civil

post under the Union or a State shall be dismissed or removed by an authority

subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in


and given a reasonable opportunity of being heard in respect of those charges;

Provided that where it is proposed after such inquiry, to impose upon him any



making representation on the penalty proposed:

Provided further that this clause shall not apply—



charge; or

(b) where the authority empowered to dismiss or remove a person or

to reduce him in rank is satisfied that for some reason, to be

recorded by that authority in writing, it is not reasonably

practicable to hold such inquiry; or


(c) where the President or the Governor, as the case may be, is

satisfied that in the interest of the security of the State it is not

expedient to hold such inquiry.




in rank shall be final].

Article 311(2) of the Constitution which guarantees a reasonable opportunity to

a public servant ensures:

(a) an opportunity to deny his guilt and establish his innocence which

he can only do if he is told what the charges levelled against him

are and the allegations on which such charges are based, and

(b) an opportunity to defend himself by cross-examination the

witnesses in support of his defence.

If reasonable opportunity is not given to a delinquent officer before or at the

enquiry and he is prejudiced in raising his defence properly, the proceedings are liable

to be quashed.

Can it be said the words “reasonable opportunity of being heard in respect of

those charges” occurring in and retained in clause (2) of Article 311 would import an

opportunity being given after the enquiry is over the finding is recorded and before the

imposition of penalty ? Held, the opportunity contemplated in clause (2) can only be

opportunity during enquiry and before decision is arrived at in regard to the charges.

The opportunity contemplated in clause (2), as it stands now, does not extend to any

stage after the completion of the enquiry. Stage of imposition of punishment arises after

the completion of the enquiry and the finding is recorded. To such a stage the

“opportunity” mentioned in clause (2) of Article 311 as it stands now cannot be related.

The right to make a representation after the enquiry and before the imposition of the

penalty has been removed by the Constitution (Forty-Second) Amendment Act, 1976.

The intendment behind the amendment is clear intention to do away with the second

opportunity rule. T.K. Ramakrishnan v. Union of India, 1983(1) SLJ 68.

Article 311 applies to all Government servants holding permanent, temporary

or officiating post. The protection afforded is limited to the imposition of three major

penalties of dismissal, removal or reduction in rank. Ramanatha Pillai v. State of

Kerala, 1974(1) SCWR 1: AIR 1973 SC 2641: 1974(1) SCR 434: 1973(3) SCC 330:

1973 Lab IC 1602: 1974(1) SLR 225; Padam Prasad Sharma v. S.N.T. 1982(1) SLJ

431. See also Ram Subhag v. Union of India, 1988(4) SLR 139 Pat (DB).

Temporary Government servants or probationers are as much entitled to the

protection of Article 311(2) of the Constitution as the permanent employees despite the

fact that temporary government servants have no right to hold the post and their

services are liable to be terminated at any time by giving them a month”s notice without

assigning any reason either in terms of the contract of service or under the relevant

statutory rules regulating the terms and conditions of such service. The Courts can,


therefore, life the veil of an innocuously worded order to look at the real face of the

order and to find out whether it is as innocent as worded. Chandra Prakash Shahi v.

State of Uttar Pradesh, AIR 2000 SC 1706: 2000(3) SCR 529: 2000(5) SCC 152:

2000(2) SLR 772: 2000(3) SLJ 312: 2000 (3) LLN 21: 2000 (97) FJR 135.

Once a casual employee attains the “temporary” status, he becomes entitled to



services under the Union of India. See Nar Singh Pal v. Union of India, AIR 2000 SC

1401: 2000 (2) SCR 752: 2000 (3) SCC 588: 2000 (1) LLJ 1388: 2000 (96) FJR 502:

2000 (2) SLR 592: 2000 (3) SLJ 332: 2000 Lab IC 1377: 2000 (2) LLN 407: 2000 (85)

FLR 458.

Even though the workers may have interest in the manner in which the

Company is conducting its business, inasmuch as its policy decision may have an

impact on the workers” rights, nevertheless it is an incidence of service for an employee

to accept a decision of the employer which has been honestly taken and which is not

contrary to law. Even a government servant, having the protection of not only Articles

14 and 16 of the Constitution but also of Article 311, has no absolute right to remain in

service. For example, apart from cases of disciplinary action, the services of

government servants can be terminated if posts are abolished. If the abolition of a post

pursuant to a policy decision does not attract the provisions of Article 311 of the

Constitution. The policy of disinvestment cannot be faulted if as a result thereof the

employees lose their rights or protection under Articles 14 and 16 of the Constitution.

In other words, the existence of rights of protection under Articles 14 and 16 of the

Constitution cannot possibly have the effect of vetoing the Government”s right to

disinvest. Nor can the employees claim a right of continuous consultation at different

stages of the disinvestment process. If the disinvestment process is gone through

without contravening any law, the normal consequences as a result of disinvestment

must follow. BALCO Employees” Union (Regd.) v. Union of India, AIR 2002 SC 350:

2002(2) SCC 333: 2002(1) LLJ 550: 2002(1) SCJ 123.

32. Enquiry be Held in Accordance with the Principles of Natural Justice — If inquiring officer adopts a procedure which is contrary to the rules of natural

justice the ultimate decision based on his report of inquiry is liable to be quashed. State

of U.P. v. Mohammad Nooh, 1958 SCR 595: AIR 1958 SC 86: 1958 SCJ 242; S.

Parthasarthi v. State of A.P., 1973(II) SCWR 464: AIR 1973 SC 2701: 1974(1) SCR

697: 1974(3) SCC 459: 1974(1) SLR 427: 1973 Lab IC 1607. See also Union of India v.

I.S. Singh, 1994(S2) SCC 518: 1994(28) ATC 53: 1996(1) SLR 229 (SC); B.B. Gupta v.

Union of India, 1996(5) SLR 560 (J&K).

33. Natural Justice: Principles of — Natural justice is another name for

commonsense justice. Rules of natural justice are not codified canons. But they are

principles ingrained into the conscience of man. Natural justice is the administration of

justice in a commonsense liberal way. Justice is based substantially on natural ideals

and human values. The administration of justice is to be freed from the narrow and

restricted considerations which are usually associated with a formulated law involving

linguistic technicalities and grammatical niceties. It is the substance of justice which


has to determine its form. The expressions “natural Justice” and “legal justice” do not

present a water-tight classification. It is the substance of justice which is to be secured

by both, and whenever legal justice fails to achieve this solemn purpose, natural justice

is called in aid of legal justice. Natural justice relieves legal justice from unnecessary

technicality, grammatical pedantry or logical prevarication. It supplies the omissions of

a formulated law. The adherence to principles of natural justice as recognised by all

civilised States is of supreme importance when a quasi-judicial body embarks on

determining disputes between the parties, or any administrative action involving civil

consequences is in issue. These principles are well settled. The first and foremost

principle is what is commonly known as audi alteram partem rule. It says that no one

should be condemned unheard. Notice is the first limb of this principle. It must be

precise and unambiguous. It should appraise the party determinatively the case he has

to meet. Time given for the purpose should be adequate so as to enable him to make his

representation. In the absence of a notice of the kind and such reasonable opportunity,

the order passed becomes wholly vitiated. Thus, it is but essential that a party should be

put on notice of the case before any adverse order is passed against him. This is one of

the most important principles of natural justice. It is after all an approved rule of fair

play. Canara Bank v. Debasis Das, 2003(4) SCC 557: 2003(3) SLT 729: 2003(2)

LLJ 531.

Though the precise contours of the principles of the natural justice are not easy

to define, in the past it was thought that it included two principles, namely (1) no one

shall be a judge in his own, and (2) no decision shall be given against a party without

affording him a reasonable hearing. Very soon thereafter a third rule was envisaged and

that is that quasi judicial inquiries must be held in good faith, without bias and not

arbitrarily or unreasonably. But in the course of years many more subsidiary rules came

to be added. A.K. Kraipak v. Union of India, AIR 1970 SC 150: 1970(1) SCR 472:

1969(2) SCC 240: 1969 SLR 445: 1970(1) SCJ 381. See also State Bank of India v. S.S.

Koshal, 1994(S2) SCC 468: 1994(27) ATC 834: 1995(5) SLR 181 (SC); Union of India

v. B.K. Srivastava, AIR 1998 SC 300: 1998(6) SCC 340: 1997(8) JT 573: 1997(5) SLR

80 (SC).

Some settled principles of natural justice for disciplinary proceedings broadly

stated are:—

(i) No one to be condemned unheard;

(ii) Copy of charge be given to delinquent officer intimating the

case against him along with list of documents and witnesses by

which charge is proposed to be proved;

(iii) delinquent officer be given reasonable time to submit his written

statement;

(iv) a party should have opportunity of adducing all relevant

evidence on which he relies, the evidence of opponent should be

taken in his presence and that he should be given opportunity of

cross-examining the witnesses examined by that party, no

material should be relied against him without his being given an


opportunity of explaining them. All relevant copies of

documents to which delinquent is entitled must be given to him

free of charge to enable him to cross-examination the witnesses;

(v) grant of permission for assistance of lawyer when such

assistance is necessary under the circumstances of the case be

not refused;

(vi) there should be no denial of reasonable opportunity to defend;

(vii) proceedings be without bias and not arbitrary, and

(viii) copy of report of Inquiry Officer is supplied to delinquent

officer.

34. Natural Justice: Requirement of — (1) Reasonable opportunity

contemplated under Article 311(2) of the Constitution primarily consist of—.

(i) Opportunity to the concerned officer to deny his guilt and establish his

innocence which means he must be told what the charges against him

are and the allegations on which such charges are based. The

delinquent is entitled to the opportunity to know the materials against

him.

(ii) He must be given reasonable opportunity to have the evidence recorded

in his presence and to cross-examine the witnesses examined.

(iii) He must be given reasonable opportunity to examine himself on other

witnesses or his behalf in support of his defence;

Khen Chand v. Union of India, 1958 SLR 1081: AIR 1958 SC 300:1958 SCR

1080: 1958 SCJ 497: 1958 SCJ 497; Narayan Misra v. State of Orissa, 1982(2) SLR 506.

(2) The necessary requirement of natural justice is a reasonable opportunity to

defend. Krishan Chandra Tandon v. Union of India, 1974(2) SLR 178; Ghirrao

Srivastva v. State of U.P., 1975(1) SLR 323: 1975 Lab IC 1033. See also A. Palanisamy

v. Union of India, 1994(3) SLR 555 (CAT Mad); Sri Budheswar Deka v. State of

Arunachal Pradesh, 1994(4) SLR 245 Gau.

Tribunal findings rule 14(17) and (18) envisages enquiry officer to conduct

separate enquiry, natural justice cannot be said to have been violated. B.C. Rangarajan

v. General Manager, Ordinance Factory, Tiruchirapalli, 1988(1) SLJ 521 (CAT Mad).

35. Natural Justice, Rules of — Rules of natural justice are not embodied

rules nor can they be elevated to the position of fundamental rights. As observed by

Supreme Court in A.K. Kriapak v. Union of India, AIR 1970 SC 150: 1970(1) SCR 457:

1969(2) SCC 262: 1969 SLR 445: 1969(1) SCWR 1122 “the aim of rules of natural

justice is to secure justice or to put it negatively to prevent miscarriage of justice. These

rules can operate only in areas not covered by any law validly made. In other words

they do not supplant the law but supplement it”. Union of India v. Col. J.N. Sinha,

1970(II) SCWR 393: AIR 1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458: 1971 Lab

IC 8: 1970 SLR 748: 1971(1) SCJ 655.


36. Natural Justice, Non-observance of Principles or Rules of — An enquiry

must be conducted in accordance with the principles of natural justice. What principles

of natural justice should be applied in a particular case depends on the facts and

circumstances of that case. All that the courts have to see is whether the non-

observance of any of those principles in a given case is likely to have resulted in

deflecting the course of justice. State of U.P. v. Om Prakash Gupta, 1970(1) SCWR

139: AIR 1970 SC 679: 1969(3) SCC 775: 1969 SLR 890: 1970 Lab IC 568; A.K.

Kraipak v. Union of India, AIR 1970 SC 150: 1970(1) SCR 457: 1969(2) SCC 262:

1969 SLR 445: 1961(1) SCWR 1122; Chandra Bhawan v. State of Mysore, 1969(II)

SCWR 750: AIR 1970 SC 2042: 1970(2) SCR 600: 1969(3) SCC 84: 1970 Lab IC 1632.

Rules of natural justice are not embodied rules. The question whether in a

given case the principles have been violated or not has to be found out on consideration

as to whether the procedure adopted by the appropriate authority is in accordance with

law or not, and further whether the delinquent knew what the charges he is going to

meet. In other words, what is required to be examined is whether the delinquent knew

the nature of accusation, whether he has been given an opportunity to state his case and

whether the Tribunal has acted in good faith. If these requirements are satisfied then it

cannot be said that the principle of natural justice has been violated. Uttar Pradesh

State Road Transport Corporation v. Ram Chandra Yadav, AIR 2000 SC 3596: 2000(9)

SCC 327: 2000(4) SLR 767: 2000(86) FLR 776: 2001 Lab IC 37.

Witnesses asked for by petitioner not produced. Documents asked for by

petitioner not even shown to him. Enquiry officer has not stated anywhere that the said

documents were irrelevant nor the inquiry officer dealt with the question of production

of the aforesaid person as witnesses. Principles of natural justice have been clearly

violated. Girwar v. Union of India, 1982(2) SLJ 56.

Names of the witnesses already intimated to the delinquent on an earlier

occasion, but they could not examined. On the date when they were examined, some

more names of witnesses were given in the list to be examined. It was held that this

would not constitute a violation of the principle of natural justice. Uttar Pradesh State

Road Transport Corporation v. Ram Chandra Yadav, AIR 2000 SC 3596: 2000(9) SCC

327: 2000(4) SLR 767: 2000(86) FLR 776: 2001 Lab IC 37.

Where allegation and charges are admitted and no possible defence is placed

before the authority concerned, interference on the ground of violation of principles of

natural justice is not called for. Dharmarathmakara Raibahadur Aroot Rameswamy

Mudaliar v. Education Appellate Tribunal, AIR 1999 SC 3219: 1999(7) SCC 332: 1999

Lab IC 3237: 2000(1) LLJ 393: 1999(5) SLR 20: 128: 2000(1) LLN 340.

37. Compliance with each of the Requirements laid down in the Rule: Necessary — (i) The procedure prescribed for enquiry against delinquent public

servants as contained in the Rule provides for “reasonable opportunity” as contemplated

under Article 311(2) of the Constitution, and therefore, compliance with each of the

requirement laid down by the rule should normally be insisted upon, as otherwise

reasonable opportunity, which is guaranteed to the public servant under Article 311(2)

of the Constitution, may not be ensured to the delinquent whose conduct is under

enquiry. Baidhar Das v. State, AIR 1970 Ori 220; A substantive appointment to a


permanent post in a public service confers substantive right to the post and the person

appointed on that post becomes entitled to hold a lien on the post. He gets the right to

continue on the post till he attains the age of superannuation or is dismissed or removed

from service for misconduct etc. after disciplinary proceedings in accordance with the

Rules at which he is given a fair and reasonable opportunity of being heard. He may

also come to lose the post on compulsory retirement. Life Insurance Corporation of

India v. Raghavendra Seshagiri Rao Kulkarni, AIR 1998 SC 327: 1997 Supp (4) SCR

207: 1997(8) SCC 461: 1997(77) FLR 782: 1997(5) SLR 774: 1998(2) LLJ 1161: 1998

Lab IC 411: 1998(1) LLN 56: 1998(92) FJR 25.

(ii) It is well known that the civil servant has right at different stages of the

proceeding. His default at one stage will not take away his right at other stages of the

proceedings. Puran Chandra Das v. Chairman, State Transport Authority, Orissa, AIR

1970 Ori 1.

(i) Court has to see the Procedural Irregularity — (I) The guarantee under

Article 311 is of the regularity of the enquiry. If the enquiry is not vitiated on the

ground of any procedural irregularity, the Court is not concerned to decide whether the

evidence justified the order. Kshirode Behari Chakarvorty v. Union of India, 1970(1)

SCWR 325: 1970 SLR 321; State of A.P. v. Chitra Venkata Rao, AIR 1975 SC 2151:

1976(1) SCR 356: 1975(2) SCC 523: 1975 SLJ 772: 1976(1) SLR 653; Nand Kishore

Prasad v. State of Bihar, AIR 1978 SC 1277: 1978(3) SCR 708: 1978(3) SCC 366:

1978 Lab IC 1106: 1978(2) SLR 46: 1978 SLJ 591. Court”s power of judicial review in

such cases is limited and Court can interfere where the authority held the enquiry

proceedings in a manner inconsistent with the rules of natural justice or in violation of

statutory rules prescribing the mode of enquiry and imposing punishment or where the

conclusion or finding reached by the disciplinary authority is based on no evidence or is

such that no reasonable person would have ever reached. Food Corporation of India v.

A. Prahalada Rao, 2001(1) SCC 165: AIR 2001 SC 51: 2000(5) SLR 600: 2000(87)

FLR 899: 2001(2) SLJ 204: 2001 Lab IC 23.

Interference with the decision of departmental authorities can be permitted,

while exercising jurisdiction under Article 226 of the Constitution if such authority had

held proceedings or in violation of the principles of natural justice or in violation of

statutory regulations prescribing the mode of such inquiry or if the decision of the

authority is vitiated by considerations extraneous to the evidence and merits of the case,

or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or

capricious that no reasonable person could have arrived at such a conclusion, or

grounds very similar to the above. But we cannot overlook that the departmental

authority (in this case the Disciplinary Committee of the High Court) is the sole judge

of the facts, if the inquiry has been properly conducted. The settled legal position is that

if there is some legal evidence on which the findings can be based, then adequacy or

even reliability of that evidence is not a matter for canvassing before the High Court in

a writ petition filed under Article 226 of the Constitution. High Court of Judicature at

Bombay v. Shashikant S. Patil, 2000(1) SCC 416: 1999 Supp (4) SCR 205: AIR 2000

SC 22: 1999 Lab IC 3833: 1999(83) FLR 1001: 1999(5) SLR 615: 2000(1) SCJ 10:

2000(2) SLJ 98: 2000(1) LLN 317.


(ii) Court not to Re-examine and Reassess Evidence — Neither the High

Court nor the Supreme Court can re-examine and reassess the evidence in writ

proceedings. K.L. Shinde v. State of Mysore, AIR 1976 SC 1080: 1976(3) SCR 913:

1976(3) SCC 76: 1976 SLJ 468: 1976(2) SLR 260: 1976 Lab IC 699; State of Haryana

v. Rattan Singh, 1977 SLJ 408: 1977(1) SLR 750: AIR 1977 SC 1512: 1977(2) SCC

491: 1977 Lab IC 845; Kanshi Ram Verma v. Municipal Committee, Mansa, 1981(1)

SLJ 203: 1981(1) SLR 290 (SC).

In a departmental proceeding, the disciplinary authority is the sole judge of

facts and the High Court may not interfere with the factual findings but the availability

of judicial review even in the case of departmental proceeding cannot be doubted.

Judicial review of administrative action is feasible and same has its application to its

fullest extent in even departmental proceedings where it is found that the recorded

findings are based on no evidence or the findings are totally perverse or legally

untenable. The adequate or inadequacy of evidence is not permitted but in the event of

there being a finding which otherwise shocks the judicial conscience of the court, it is a

well-neigh impossibility to decry availability of judicial review at the instance of an

affected person. Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, 2001(1)

SCC 182: AIR 2001 SC 24: 2000(87) FLR 877: 2001(1) LLJ 583: 2001 Lab IC 11.

Quashing of order of dismissal after re-appreciation of evidence by High Court,

held, not permissible since High Court is not sitting in appeal over the findings given

by the disciplinary authority. Uttar Pradesh State Road Transport Corporation v. Har

Narain, 1998(9) SCC 220: 1998(7) JT 437: 1998(80) FLR 928: 1999(3) LLJ 1000;

Shirji Vidyalaya v. Patel Anil Kumar Lallubhai, 1998(9) SCC 561: 1999(1) LLJ 1229:

1999(81) FLR 273: 1999(82) FLR 694; Tribunal can not reject enquiry report on the

ground no independent witness was produced. Commissioner and Secretary to the

Government v. C. Shanmugam, 1998(2) SCC 394: 1998(79) FLR 739: 1998(2) LLJ 290:

1998(3) LLN 603.

But at the same time merely dismissing the writ petition on the ground that

“findings of the enquiry officer, being findings of fact” cannot be interfered with in writ

jurisdiction is too broadly stated. Indeed, scope of judicial review in dealing with such

matters is limited but even that limited scope was held to have not been exhausted by

the High Court in this case. The matter was therefore remanded for fresh decision. Ram

Chandra Shukla v. State of Uttar Pradesh, 2001(4) Scale 439: 2001(6) Supreme 308:

2001(5) SLT 14.

Even if another view is possible in the matter, that will not be a ground to

interfere with the orders passed in the disciplinary proceedings. Anil Kapoor v. Union

of India, AIR 1999 SC 1528: 1998(9) SCC 47: 1999 Lab IC 603: 1999(81) FLR 26.

Dissatisfaction with evidence is no ground to interfere with the finding. Secretary to

Government, Home Deptt. v. Srivaikundathan, 1998(9) SCC 553: 1998(8) JT 470:

1998(2) LLJ 629: 1998(3) LLN 591: 1999(81) FLR 257.

Administrative Tribunal re-evaluating and reassessing the evidence before

passing the final order by disciplinary authority and holding that the charges levelled

against the delinquent were not proved. Such procedure held to be improper and


impermissible. District Forest Officer v. R. Rajamanickam, 2000(9) SCC 284: 2001(1)

LLJ 1156.

Challenge to charge sheet containing allegations based on documents yet to be

produced as evidence in the disciplinary proceedings, by way of writ petition under

article 226 of Constitution. Held that the charges contained in the charge sheet cannot

be held baseless by the High Court before producing the evidence and proving the

charges in the disciplinary proceedings. State of Punjab v. Ajit Singh, 1997(11) SCC 368.

(iii) Principles of interference with departmental enquiry by court— The

Supreme Court has laid down following principles for interference with the

Departmental Enquiry—

(1) An order passed imposing a punishment on an employee consequent upon a

disciplinary/departmental enquiry in violation of the rules/regulations/statutory

provisions governing such enquiries should not be set aside automatically. The Court or

the Tribunal should enquire whether (a) the provision violated is of a substantive nature

or (b) whether it is procedural in character.

(2) A substantive provision has normally to be complied with as explained

hereinbefore and the theory of substantial compliance or the test of prejudice would not

be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this:

procedural provisions are generally meant for affording a reasonable and adequate

opportunity to the delinquent officer/employee. They are, generally speaking, conceived

in his interest. Violation of any and every procedural provision cannot be said to

automatically vitiate the enquiry held or order passed. Except cases falling under “no

notice”, “no opportunity” and “no hearing” categories, the complaint of violation of

procedural provision should be examined from the point of view of prejudice, viz.,

whether such violation has prejudiced the delinquent officer/employee in defending

himself properly and effectively. If it is found that he has been so prejudiced,

appropriate orders have to be made to repair and remedy the prejudice including setting

aside the enquiry and/or the order of punishment. If no prejudice is established to have

resulted therefrom, it is obvious, no interference is called for. In this connection, it may

be remembered that there may be certain procedural provisions which are of a

fundamental character, whose violation is by itself proof of prejudice. The Court may

not insist on proof of prejudice in such cases. As explained in the body of the judgment,

take a case where there is a provision expressly providing that after the evidence of the

employer/government is over, the employee shall be given an opportunity to lead

defence in his evidence, and in a given case, the enquiry officer does not give that

opportunity inspite of the delinquent officer/employee asking for it. The prejudice is

self- evident. No proof of prejudice as such need be called for in such a case. To repeat,

the test is one of prejudice i.e., whether the person has received a fair hearing

considering all things. Now, this very aspect can also be looked at from the point of

view of directory and mandatory provisions if one is so inclined. The principle stated

under (4) herein below is only another way of looking at the same aspect as is dealt

with herein and not a different or distinct principle.


(4)(a) In the case of a procedural provision which is not of a mandatory

character, the complaint of violation has to be examined from the standpoint of

substantial compliance, be that as it may, the order passed in violation of such a

provision can be set aside only where such violation has occasioned prejudice to the

delinquent employee.

(b) In the case of violation of a procedural provision, which is of a mandatory

character, it has to be ascertained whether the provision is conceived in the interest of

the person proceeded against or in public interest. If it is found to be the former, then it

must be seen whether the delinquent officer has waived the said requirement, either

expressly or by his conduct. If he is found to have waived it, then the order of

punishment cannot be set aside on the ground of said violation. If, on the other hand, it

is found that the delinquent officer/employee has not it or that the provision could not

be waived by him, then the Court or Tribunal should make appropriate directions

[include the setting aside of the order of punishment], keeping in mind the approach

adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the

same, viz., test of prejudice or the test of fair hearing, as it may be called.

(5) Where the enquiry is not governed by any rules/regulations/statutory

provisions and the only obligation is to observe the principles of natural justice - or, for

that matter, wherever such principles are held to be implied by the very nature and

impact of the order/action - the Court or the Tribunal should make a distinction between

a total violation of natural justice [rule of audi alteram partem] and violation of a facet

of the said rule, as explained in the body of the judgment. In other words, a distinction

must be made between “no opportunity” and no adequate opportunity, i.e., between “no

notice”/”no hearing” and “no fair hearing”. (a) In the case of former, the order passed

would undoubtedly be invalid [one may call it “void” or a nullity if one chooses to]. In

such cases, normally, liberty will be reserved for the Authority to take proceedings

afresh according to law, i.e., in accordance with the said rule [audi alteram partem]. (b)

But in the latter case, the effect of violation [for a facet of the rule of audi alteram

partem” has to be examined from the standpoint of prejudice; in other words, what the

Court or Tribunal has to see is whether in the totality of the circumstances, the

delinquent officer/employee did or did not have a fair hearing and the orders to be made

shall depend upon the answer to the said query. [It is made clear that this principle [No.

5] does not apply in the case of rule against bias, the test in which behalf are laid down

elsewhere.]

(6) While applying the rule of audi alteram partem [the primary principle of

natural justice] the Court/Tribunal/Authority must always bear in mind the ultimate and

over-riding objective underlying the said rule, viz., to ensure a fair hearing and to

ensure that there is no failure of justice. It is this objective which should guide them in

applying the rule to varying situations that arise before them.

(7) There may be situations where the interests of state or public interest may

call for a curtailing of the rule of audi alteram partem. In such situations, the Court may

have to balance public/State interest with the requirement of natural justice and arrive

at an appropriate decision.


See State Bank of Patiala v. S.K. Sharma, AIR 1996 SC 1669: 1996(3) SCR

972: 1996(3) SCC 364: 1996 SCC(L&S) 717: 1996(2) SLR 631: 1996(2) UJ 338:

1996(1) LLN 819: 1996(2) LLJ 296.

(iv) Perverse findings— Where the findings are perverse and are not supported

by evidence on record or the findings recorded at the domestic trial are such to which

no reasonable person would have reached, the Courts have power to interfere in the

matter. Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC

739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174:

2000(1) LLN 39. See also Food Corporation of India v. A. Prahalada Rao, 2001(1)

SCC 165: AIR 2001 SC 51: 2000(5) SLR 600: 2000(87) FLR 899: 2001(2) SLJ 204:

2001 Lab IC 23.

Judicial review of administrative action is feasible and same has its application

to its fullest extent in even departmental proceedings where it is found that the recorded

findings are based on no evidence or the findings are totally perverse or legally

untenable. The adequate or inadequacy of evidence is not permitted but in the event of

there being a finding which otherwise shocks the judicial conscience of the court, it is a

well-neigh impossibility to decry availability of judicial review at the instance of an

affected person. Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, 2001(1)

SCC 182: AIR 2001 SC 24: 2000(87) FLR 877: 2001(1) LLJ 583: 2001 Lab IC 11.

A broad distinction has to be maintained between the decisions which are

perverse and those which are not. If a decision is arrived at on no evidence or evidence

which is thoroughly unreliable and no reasonable person would act upon it, the order

would be perverse. But if there is some evidence on record which is acceptable and

which could be relied upon, howsoever compendious it may be, the conclusions would

not be treated as perverse and the findings would not be interfered with. Kuldeep Singh

v. Commissioner of Police, AIR 1999 SC 677: 1998 Supp (3) SCR 594: 1999(2) SCC

10: 1999(1) SLR 283: 1999(1) LLJ 604: 1999 Lab IC 437: 1999(80) ECR 265: 1999(2)

LLN 74: 1999(81) FLR 630: 1999(95) FJR 80: 1999(3) SLJ 111.

38. Reasonable opportunity, meaning of — Reasonable opportunity

contemplated by Article 311(2) means “Hearing in accordance with the principles of

natural justice under which one of the basic requirements is that all the witnesses in the

departmental enquiry shall be examined in the presence of the delinquent who shall be

given an opportunity to cross-examine them. Where a statement previously made by a

witness, either during the course of preliminary enquiry or investigation, is proposed to

be brought on record in the departmental proceedings, the law as laid down by this

Court is that a copy of that statement should first be supplied to the delinquent, who

should thereafter be given an opportunity to cross-examine that witness. Kuldeep Singh

v. Commissioner of Police, AIR 1999 SC 677: 1998 Supp (3) SCR 594: 1999(2) SCC

10: 1999(1) SLR 283: 1999(1) LLJ 604: 1999 Lab IC 437: 1999(80) ECR 265: 1999(2)

LLN 74: 1999(81) FLR 630: 1999(95) FJR 80: 1999(3) SLJ 111

A delinquent employee has the right of hearing not only during the enquiry

proceedings conducted by the Enquiry Officer into the charges levelled against him but

also at the stage at which those findings are considered by the Disciplinary Authority

and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does


not agree with the findings recorded by the Enquiry Officer. If the findings recorded by

the Enquiry Officer are in favour of the delinquent and it has been held that the charges

are not proved, it is all the more necessary to give an opportunity of hearing to the

delinquent employee before reversing those findings. The formation of opinion should

be tentative and not final. It is at this stage that the delinquent employee should be

given an opportunity of hearing after he is informed of the reasons on the basis of

which the Disciplinary Authority has proposed to disagree with the findings of the

Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the

Constitution as it provides that a person shall not be dismissed or removed or reduced

in rank except after an enquiry in which he has been informed of the charges against

him and given a reasonable opportunity of being heard in respect of those charges. So

long as a final decision is not taken in the matter, the enquiry shall be deemed to be

pending. Mere submission of findings to the Disciplinary Authority does not bring

about the closure of the enquiry proceedings. The enquiry proceedings would come to

an end only when the findings have been considered by the Disciplinary Authority and

the charges are either held to be not proved or found to be proved and in that event

punishment is inflicted upon the delinquent. That being so, the “right to be heard”

would be available to the delinquent up to the final stage. This right being a

constitutional right of the employee cannot be taken away by any legislative enactment

or Service Rule including Rules made under Article 309 of the Constitution. Yoginath

D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999 Supp (2) SCR 490:

1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1)

SLJ 174: 2000(1) LLN 39.

39. Departmental Enquiry: Holding of — Order to hold departmental

enquiry. It is not for High Court to declare that the order is invalid. State of Andhra

Pradesh v. Sree Rama Rao, AIR 1963 SC 1723: 1964(3) SCR 25: 1964(2) LLJ 150:

1964(1) SCJ 402; holding of regular departmental enquiry is a discretionary power of

the disciplinary authority which is to be exercised by considering the facts of each case

and if it is misused or used arbitrarily, it would be subject to judicial review. Food

Corporation of India v. A. Prahalada Rao, 2001(1) SCC 165: AIR 2001 SC 51: 2000(5)

SLR 600: 2000(87) FLR 899: 2001(2) SLJ 204: 2001 Lab IC 23.

There is no such principle of natural justice that before holding of regular

enquiry, the disciplinary authority itself should hold a preliminary enquiry by first

drawing up a charge memo and then calling for written statement of defence before

taking a decision to hold a regular departmental enquiry. Secretary to Government of

Tamil Nadir v. D. Subramanyan Rajadeven, 1996 (5) SCC 334.

40. Departmental Enquiry to deter Civil Servant from pursuing his Legal

Remedies — Departmental enquiry can be held for a misconduct. The act of civil

servants in presenting the writ petition under Article 226 of the Constitution to

vindicate their right and their act in persuading the other colleagues to join as writ

petitioners constitutes no misconduct and the action of the respondents in instituting the

disciplinary enquiry cannot but he characterised as arbitrary and capricious. Whoever is

responsible for the commencement of such disciplinary proceedings would be

committing a contumacious act punishable under the Contempt of Courts Act since

what that person would be doing is undoubtedly something by which he intends to deter


the civil servant from pursuing his legal remedy which is perfectly entitled to do. V.K.

Parameswaran v. Union of India, 1982 Lab IC 383: 1982(1) SLJ 516 Kar.

41. Departmental Enquiry not an Empty Formality — Departmental

proceeding is not an empty formality to be completed, but it is serious proceeding

intended to give the public servant a chance to meet the charges and to prove his

innocence. Jagdish Prasad Saxena v. State of M.B., AIR 1961 SC 1070: 1963(1) LLJ

325; Ram Lal v. Union of India, AIR 1963 Rajasthan 57; Anil Kumar Das v.

Superintendent of Post Offices, AIR 1969 Assam 99.

42. Departmental Proceeding a Two-sided Affair — A departmental

proceeding is a two sided affair, the officer drawing up the proceedings must be

reasonable and helpful in allowing the person who is charge-sheeted to meet the case,

equally, the latter must participate, instead of attempting to block the enquiry. Haripada

Moitra v. President Calcutta Improvement Tribunal, AIR 1970 Cal 154. See also

Bhagat Singh v. Union of India, 1994(7) SLR 743 (CAT Cal).

43. Order Sheet be Maintained Showing the Progress of the Enquiry from

Day to Day — The procedure of enquiry, as laid down under these rules, does warrant a

maintenance of an order sheet showing the various orders passed from time to time. In

the absence of an order-sheet it is difficult to know whether at the various stages the

enquiring officer or the disciplinary authority had followed the procedure without

prejudicing any of the rights of the Government servant. Anil Kumar Das v.


44. Procedure where Statute Silent — There is little hazard in asserting

today, that “the duty to act judiciously is implicit in the exercise of the power” to

dismiss an employee on charges of misconduct, even though the statute which confers

such power is silent about the procedure to be adopted. An inquiry, consonant with the

principles of natural justice, must therefore, be held before the statutory power of

dismissing an employee could be exercised by the employee. Rama Kant Banik v.

District School Board, AIR 1969 Cal 397.

The principles of natural justice is the best measure if there is absence of

statutory rules or administrative constructions. Asi Mohammad Shri v. Union of India,

1994(1) SLR 637 (CAT New Delhi).

But this does not apply to substantive rights. In one case, in the service rules no

specific provision was made for deducting any amount from the provident fund

consequent to any misconduct determined in the departmental enquiry nor was any

provision made for continuance of departmental enquiry after superannuation. Held that

in view of the absence of such provisions in the abovesaid regulations, it must be held

that the Corporation had no legal authority to make any reduction in the retiral benefits

of the appellant. There is also no provision for conducting a disciplinary enquiry after

retirement of the appellant and nor any provision stating that in case misconduct is

established, a deduction could be made from retiral benefits. Bhagirathi Jena v. Board

of Directors, O.S.F.C., 1999(3) SCC 666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2)

SLR 355: 1999(1) LLJ 1236: 1999 Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143:

1999(95) FJR 21: 1999(3) SLJ 294.


In Jagdhari Roy v. State of Bihar, 1969 SLR 152, it was held that in the

absence of an express prohibition in any of the service rules, it cannot be said as a

proposition of law that, merely because an officer has superannuated, all the

departmental proceedings pending against him must be deemed to have become

ineffective. It was further held that the Mysore case cited is based on service rules in

force in Mysore State and it cannot be applied mechanically in the State of Bihar.

In the absence of a specific rule, once a departmental enquiry is over and a

public servant is exonerated of the charges on merits, no second departmental inquiry

on the same facts can be ordered. K. Srinivasa Rao v. Director of Agriculture, A.P.,

1971(2) SLR 24 (AP): 1971 Lab IC 778; Prakash Nath Saidha v. Financial

Commissioner, 1972 SLR 601; Sanjib K. Sen v. Director of Admin., 1974(2) SLR 478:

1974 SLJ 692; Hridaya Narain Prasad v. State of Bihar, 1975(1) SLR 232; Collector of

Customs v. Rebati Mohan Chatterjee, 1976(2) SLR 897; State of Assam v. J.N. Roy,


1; R. N. Atri v. Union of India, 1979 SLJ 12: 1979(1) SLR 527; Ganga Singh v. State of

Punjab, 1982(2) SLR 593.

45. No Regular Departmental Inquiry is Required While Imposing Penalty

in Certain Cases — No departmental inquiry is necessary while imposing penalty in

the following cases:.

(a) Where a person is dismissed or removed or reduced in rank on the ground

of conduct which had led to his conviction on a criminal charge; or.

(b) Where the authority empowered to dismiss or remove a person, or to reduce

him in rank is satisfied that for some reason, to be recorded by that authority in writing,

it is not reasonably practicable to hold such inquiry in the manner provided in these

rules; or.

(c) Where the President or the Governor, as the case may be, is satisfied that in

the interest of the security of the State it is not expedient to hold such inquiry.

Absence of regular inquiry does not invalidate compulsory requirement if—

(i) charge sheet is issued and employee shows no response; and.

(ii) show cause notice of proposed punishment is issued and no response is

received from employee. Bhishmadev Nayak v. Secretary to Govt. Fisheries and Animal

Husbandry Dept., Bhubaneswar, 1989(1) SLR 542 (Orissa Admn. Tribunal).

[Please see Commentary under Rule 19.].

Sub-rule (i)

46. (i) No Major Penalty can be Imposed Without an Enquiry — Rule 14(1)

provides that no order imposing any major penalty shall be imposed except after an

enquiry held as far as may be in the manner prescribed in Rules 14& 15. A regular

enquiry is to be held if major penalty is to be inflicted. Narayan Misra v. State of

Orissa, 1982(2) SLR 506. See also Bhagat Singh v. Union of India, 1994(7) SLR 743

(CAT Cal). Stopping of increments with cumulative effect is a major penalty. Therefore


enquiry for imposing penalty should be held in terms of Regulations. Mohinder Singh v.

State of Punjab, 1994 (27) ATC 448: 1995 Supp (4) SCC 433.

47. (ii) Interpretation of Expression “As far as may be” in Sub-rule (1) —

From a perusal of Rule 14, it appears that an elaborate inquiry is indicated in

conformity with what is known as the rules of natural justice. The expression “as far as

may be” in sub-rule (1) may admit of some variation but not if such a variation leads to

the prejudice of the Government servant or results in an ineffective representation of his

case before the authority. Anil Kumar Das v. Superintendent of Post Offices, AIR 1969

Assam 99.

48. Who should be Charged — It is for the disciplinary authority to consider

who should be charged and who should not be charged. No question of discrimination

arises if disciplinary authority was not satisfied that P should be charged along with the

petitioner. Bholanath v. Management of D.T.U., 1971(2) SLR 240 Delhi.

Sub-rules (3) and (4)

49. Charge-sheet by Officer Performing Current Duties — Sub-rule (3)

provides that the disciplinary authority shall draw up or cause to be drawn up the

articles of charge. An officer performing the current duties as a stop gap arrangement

cannot exercise the statutory powers under the rules and the charge-sheet by such an

officer cannot have any validity, the charge-sheet having not been issued by authority

who was entitled to or empowered to issue charge-sheet under the rule. Paresh Chandra

Dutta v. Collector of Calcutta, 1979(1) SLR 44, See also K.P. Agarwal v. Union of

India, 1994(7) SLR 713 (CAT Jaipur). It is not necessary that charge memo has to be

issued only by an appointing authority or an authority holding a higher rank.


1997(1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3) LLJ 1.

Charge sheet issued by an officer subordinate to the disciplinary authority is valid.

Secretary to Government v. A.C.J. Britto, AIR 1997 SC 1393: 1996 Supp (10) SCR

441: 1997(3) SCC 387: 1997(1) SLR 732: 1997 Lab IC 1528: 1997(2) LLJ 388: 1997(3)

LLN 8.

50. Charge to be Drawn up by Competent Authority — The memo of

charges having been drawn up by an authority not competent in that behalf, the entire

proceedings based on such charge memo deserve to be quashed. S. Krishan Nair v.

Kerala Public Service Commission, 1982(2) SLJ 170: 1983 Lab IC 24.

Under rule 14(3), the charge sheet may be drawn up either by the disciplinary

authority himself or upon his order. Hence where the Deputy General Manager signs the

charge for the General Manager of the Ordnance Factory, the charge so framed is in

conformity with the rule. A.Philip v. Director of General of Ordnance Factories,

Calcutta, 1990(2) SLJ 630: 1990(2) ATJ 552: 1990(13) ATC (CAT) 641 Mad.

There is no legal or constitutional bar in the appointment of an enquiry officer

and a presenting officer simultaneously, with the service of Memorandum on a

Government servant, when purporting to hold an enquiry against him pursuant to rule

14(3) CCS (CCA) Rules and before the expiry of time limit specified for submitting a

written statement of defence by the Government servant concerned under rule 14(4)


unless some prejudice has been caused to the delinquent. R.D.Gupta v. Union of India,

1992(3) SLR 804 (CAT New Delhi) (FB).

Generally speaking, it is not necessary that the charges should be framed by the

authority competent to award the proposed penalty or that the enquiry should be

conducted by such authority. Held that in the absence of any provision in the Rules

expressly taking away the power of appointing authority and disciplinary authority to

initiate disciplinary proceedings, framing of charge and conduct of inquiry by such

authority and not by the authority competent to impose penalty, is not illegal. Inspector

General of Police v. Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC 145: 1996

SCC(L&S) 433: 1996(32) ATC 663: 1996(2) SLR 470: 1996(1) UJ 424: 1996(74) FLR

2510: 1996(2) LLN 515: 1997(2) LLJ 191.

51. Charge should be Clear — Charge should be clear and not vague and

indefinite. The charge and the statement of facts form part of a single document.

Ramanand v. Divisional Mechanical Engineer, AIR 1962 Raj 265; Union of India v. Sri

Kula Chandra Sinha, AIR 1963 Tri 20; State of A.P. v. Sree Rama Rao, AIR 1963 SC

1723: 1964(3) SCR 25: 1964(1) SCJ 402. See also K.P. Agarwal v. Union of India,

1994(7) SLR 713 (CAT Jaipur); Sawai Singh v. State of Rajasthan, 1986(2) SLR 47 (SC).

Where charge sheet was concise but specific allegations were made against the

delinquent which could have been duly understood by the accused person and in fact

were understood by him as reflected from his reply to the charge sheet, and also the fact

that the delinquent at no stage raised any objection about the same, no infirmity with

the disciplinary proceedings can be found. State Bank of Bikaner and Jaipur v. Prabhu

Dayal Grover, AIR 1996 SC 320: 1995(6) SCC 279: 1996 Lab IC 210: 1996(72) FLR 1:

1996(1) LLJ 288: 1996(1) SLJ 145.

52. Charges must be Specific, Precise and not Vague — Material allegations

be mentioned in charge-sheet or appended to the charge-sheet. In order to afford

delinquent a reasonable opportunity for defence as envisaged by the provisions of

Article 311(2) of Constitution, he should be informed of the charges levelled against

him as well as of the allegations on which such charges are based. These charges should

be specific, precise and not vague and should convey to the delinquent official in the

clearest possible term the act of misconduct levelled against him. This can be done

either by giving the material particulars of the specific act of misconduct in the charge

itself or in the statement of allegations appended thereto. This statement of allegations

of the charges itself should give an idea of the evidence which is against him. Hari

Prasad Singh v. Commissioner of Income Tax, AIR 1972 Cal 27; State of U.P. v. Basish

Narain Singh, 1973(2) SLR 297; Ramphal v. State of Punjab, 1968 SLR 213: 1968 SLJ

315: 1968 Cur LJ 174.

Where memorandum of charges contained distinct articles of charge

accompanied by statement of imputations and list of documents, it was held that the

provision stood sufficiently complied. Director General, Indian Council of Medical

Research v. Anil Kumar Ghosh, 1998(3) SCR 1034: 1998(7) SCC 97: AIR 1998 SC

2592: 1998(3) CLT 112(SC): 1998(5) SLR 659: 1999(1) SLJ 288: 1998(80) FLR 180:

1999(1) LLJ 1036: 1998 Lab IC 3096: 1998(4) LLN 96.


A reading of charges showed that they were not specific and clear. They did not

point out clearly the precise charge against the respondent, which he was expected to

meet. One can understand the charges being accompanied by a statement of particulars

or other statement furnishing the particulars of the aforesaid charges but that was not

done. The charges are general in nature to the effect that the respondent alongwith eight

other officials indulged in misappropriation by falsification of accounts. What part did

the respondent play, which account did he falsify or help falsify, which amount did he

individually or together with other named persons misappropriate, are not

particularised. In this background and the fact that the delinquent was about to be

retired, the charge was quashed and directions were not passed for giving particulars of

charge. Transport Commissioner v. A. Radha Krishna Moorthy, 1995(1) SCC 332:

1995(29) ATC 112: 1995(1) SLR 239: 1995 Lab IC 1749: 1995(1) LLN 776.

However in another case it has been held that if the charge memo is totally

vague and does not disclose any misconduct for which the charges have been framed,

the Tribunal or the Court would not be justified at that stage to go into whether the

charges are true and could be gone into, for it would be a matter on production of the

evidence for consideration at the enquiry by the enquiry officer. At the stage of framing

of the charge, the statement of facts and the charge sheet supplied are required to be

looked into by the Court or the Tribunal as to the nature of the charges, i.e., whether the

statement of facts and material in support thereof supplied to the delinquent officer

would disclose the alleged misconduct. Deputy Inspector General of Police v. K.S.

Swaminathan, 1996 Supp (7) SCR 197: 1996(11) SCC 498: 1997(75) FLR 2: 1997(1)

SLR 176: 1997(2) LLJ 1011: 1997(3) LLN 289.

53. Necessary particulars must be given in charge-sheet — In the charge-

sheet no particulars with regard to the date and time of his alleged misconduct of

having entered Government forest and hunting a bull in that forest and thereby having

injured the feeling of one community by taking advantage of his service and rank were

not mentioned. Even the location of the incident in the vast forest was not indicated

with sufficient particularity. In the absence of these particulars the official was

obviously prejudiced in the matter of his defence at the inquiry. State of U.P. v. Mohd.

Sharif, AIR 1982 SC 937: 1982(2) SCC 376: 1982(1) SCJ 223: 1982 Lab IC 1234:

1982(2) SLR 265: 1982(2) SLJ 259.

The CAT, Hyderabad has held that rule 14(4), CCS (CCA) Rules is intended to

prevent the charges from being vague. Mere technical infraction of the rule (for

example for supplying a common list of documents) does not vitiate the proceeding. C.

Narayan Charu v. C.S.O., 1987(7) SLR 371.

54. Charge-sheet should not be Issued with a Biased and Closed Mind — It

is true that the charges against a delinquent officer must be clear and unambiguous but

at the same time the charge-sheet should not be issued with a biased and closed mind.

Surendra Chandra Das v. State of West Bengal, 1982 Lab IC 574: 1981(3) SLR 737 and

681.

55. Charge Based on Finding of Commission of Inquiry Rendered Behind the Back of Appellant, Quashed — Disciplinary proceedings were initiated against the

appellant on the charge which was purely based on the finding given by the


Commission of Inquiry in its report. Findings were given by the commission without

giving any opportunity to the appellant to put forward his case in defence. These

findings cannot exclusively form the subject matter of any disciplinary enquiry. Writ of

mandamus for bearing the Respondents from taking any action against the Appellant

based on the report of Commission issued and charge quashed. N. Manoharam v. State

of Tamil Nadu, AIR 1981 Mad 147: 1981(1) SLR 417.

56. Charge Based on the Findings and Recommendations of Vigilance Deptt.— The disciplinary authority in reality did not form its own prima facie opinion

but was influenced by the finding of the Vigilance Department and having accepted

such finding issued the charge-sheet, charge quashed. Surendra Chandra Das v. State of

West Bengal, 1982 Lab IC 574: 1981(3) SLR 737 & 681.

57. Charge not to be Based on Suspicion — Where certain charges were

based merely on suspicion, it was held that suspicion cannot be made a ground for

charging a person with guilt. Paresh Chandra Dutta v. Collector of Calcutta, 1979(1)

SLR 44. Sawai Singh v. State of Rajasthan, 1986(2) SCR 957: 1986(3) SCC 454: AIR

1986 SC 995: 1986 Lab IC 855: 1986(2) SLJ 265: 1986(2) SLR 47: 1986(2) ATR 316:

1986(5) ELJ (LS) 16: 1986 SCC (Lab) 662: 1986(2) SCWR 75: 1986(3) SCJ 25.

58. Charge-sheet Described as Memo — Where the charge-sheet was

described as a Memo and it showed that it was a Memo issued in connection with

disciplinary action, charges were formally framed and the Annexure gave detailed

particulars in support of the charges, in para 2 of this Memo the appellant was required

to show cause in writing as to why he should not be suitably dealt with and para 3 asked

him to say whether he would like to produce any evidence in support or would like to

be personally heard, there is hardly any doubt about the nature of the disciplinary action

intended to be taken. It cannot be said that there was no charge-sheet. There is no magic

in the word charge-sheet. Krishna Chandra Tandon v. Union of India, 1974(2) SLR

178: 1974 SLJ 415: AIR 1974 SC 1589: 1974(4) SCC 374: 1974 Lab IC 1010: 1975

SCC (Lab) 329.

59. Expression of Opinion in Charge-memo — (I) The expression of an

opinion by the enquiry officer in the charge memo that the delinquents had abused their

position and brought discredit to the department would vitiate proceedings. P.

Sreeramulu v. State of A.P., AIR 1970 AP 114.

(ii) Expression of opinion by the Disciplinary Authority in the charge-sheet and

the statement of allegations that the petitioner was guilty of the charges framed against

him shows that the Disciplinary Authority started with the assumption that the

petitioner was guilty of the charges framed against him and hence the disciplinary

enquiry was not held with an open and unbiased mind. Keshri Mal v. State of

Rajasthan, 1979(3) SLR 1.

60. Mention of Proposed Punishment in Charge-sheet — It is now fairly

settled that at the initial stage when charges are framed and served upon the delinquent

officer, the punishing authority or the inquiry officer should not propose what

punishment ultimately he is to be given. It is always best to avoid indicating

punishment in the show cause notice and the charge. Amarnath v. Commissioner, 1969


Cur LJ 484; M. Chinnappa Reddy v. State of A.P., AIR 1969 AP 234; Dr. S.S. Prabhu

v. Haryana Agriculture University, 1974(2) SLR 285; Meena Janah v. Dy. Director of

Tourism, W.B., 1974(1) SLR 466. Whether the punishment which was proposed to be

imposed was specified in the charge-sheet, held, it cannot be said that the disciplinary

authority conducted the enquiry with an unbiased and open mind. Keshri Mal v. State of

Rajasthan, 1979(3) SLR 1. See also D.I.G., Police v. K.S. Swaminathan, 1996(11) SCC

498: 1996(10) JT 140: 1996(8) AD(SC) 728: 1997(1) SLR 176 (SC); Gurcharan Singh

v. State of Punjab, 1997(3) SLR 403.

61. Actual service of chargesheet— Where the disciplinary proceedings are

intended to be initiated by issuing a charge-sheet, its actual service is essential as the

person to whom the charge-sheet is issued is required to submit his reply and,

thereafter, to participate in the disciplinary proceedings. So also, when the show-cause

notice is issued, the employee is called upon to submit his reply to the action proposed

to be taken against him. Since in both the situations, the employee is given an

opportunity to submit his reply, the theory of “Communication” cannot be invoked and

“Actual Service” must be proved and established. Union of India v. Dinanath

Shantaram Karekar, 1998(3) SCR 933: 1998(7) SCC 569: AIR 1998 SC 2722: 1999(1)

SLJ 180: 1998(80) FLR 446: 1998(2) LLJ 748: 1998 Lab IC 3021: 1998(4) LLN 14:

1999(94) FJR 10.

62. Delay in service of chargesheet— The meaning of the word “issued” has

to be gathered from the context in which it is used. The decision to initiate disciplinary

proceedings cannot be subsequent to the issuance of the charge-sheet is a consequence

of the decision to initiate disciplinary proceeding. The service of the charge-sheet on

the Government servant follows the decision to initiate disciplinary proceedings, and it

does not precede or coincide with that decision. The delay, if any, in service of the

charge-sheet to the Government servant, after it has been framed and despatched, does

not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as

information to the Government servant of the charges framed against him, by service of

the charge-sheet, is not a part of the decision making process of the authorities for

initiating the disciplinary proceedings. The contrary view would defeat the object by

enabling the Government servant, if so inclined, to evade service and thereby frustrate

the decision and get promotion in spite of that decision. D.D.A. V. H.C. Khurana,

(1993) 3 SCC 196.

63. Judicial review of chargesheet— Justifiability of the charges at this stage

of initiating a disciplinary proceeding cannot possibly be delved into by any court

pending inquiry but it is equally well settled that in the event there is an element of

malice or mala fide, motive involved in the matter of issue of a charge-sheet or the

concerned authority is so based that the inquiry would be a mere farcical show and the

conclusion are well known then and in that event law courts are otherwise justified in

interfering at the earliest stage so as to avoid the harassment and humiliation of a public

official. It is not a question of shielding any misdeed that the Court would be anxious, it

is the due process of law which should permeate in the society and in the event of there

being any affectation of such process of law that law courts ought to rise up to the

occasion. State of Punjab v. V.K. Khanna, AIR 2001 SC 343: 2001(2) SCC 330:

2000(5) SLR 734: 2001(1) SCJ 439: 2001 Lab IC 391.


The question whether charges against an employee are true or false fall within

exclusive jurisdiction of inquiry officer and a writ court cannot quash memorandum of

charge in the absence of adequate and compelling circumstances. Ajay Kumar Jain v.

High Court of Judicature for Rajasthan, 2002(3) SLR 200 Raj (DB).

In normal circumstances, the court in exercise of its power under Article 226

will not interfere at the initial stage when show-cause notice only had been issued.

However, these are not fetters on the powers of the Court. If the interest of justice so

requires, such a power can be exercised. H. Devinder Kumar (Sub Inspector No. 19) v.

State of Haryana, 2001(2) SLR 439 P&H (DB).

The employee approached the Tribunal merely on the information that the

charge sheet was about to be issued to him which in fact was issued during the

pendency of the matter before the Tribunal. It was held that the employee had full

opportunity to reply to the charge sheet and raise all the points available to him in such

reply and the Tribunal ought not to have entertained the application for quashing of the

charge sheet at such stage. Union of India v. Ashok Kacker, 1995 Supp (1) SCC 180:

1995(29) ATC 145: 1995(7) SLR 430.

Power of High Court to interfere with departmental inquiry is limited where it

has been initiated malafide order for oblique and order collateral purpose or no case

whatsoever has been made out. Bhajan Ch. Debnath v. State of Tripura, 2002(1) SLR

276 Gau.

In case of delay it has been held that Tribunal was right in ordering

reinstatement of the employee but it has no power to quash the charges and disciplinary

proceedings on the ground of delay alone. Union of India v. Raj Kishore Parija, 1995

Supp (4) SCC 235: 1996 SCC(L&S) 196: 1996(32) ATC 133.

In the case of charges framed in a disciplinary inquiry the Tribunal or Court

can interfere only if on the charges framed (read with imputation or particulars of the

charges, if any) no misconduct or other irregularity alleged can be said to have been m-

ade out or the charges framed are contrary to any law. At this stage, the Tribunal has no

jurisdiction to go into the truth of the charges or into the correctness or truth of the

charges. The Tribunal cannot take over the functions of the disciplinary authority. The

truth or otherwise of the charges is a matter for the disciplinary authority to go into.

Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to

Court or Tribunal, they have no jurisdiction to look into the correctness of the findings

recorded by the disciplinary authority or the appellate authority as the case may be.

Union of India v. Upendra Singh, 1994(3) SCC 357: 1994(27) ATC 200: 1994(207)

ITR 782: 1994(2) SLJ 77: 1994(1) SLR 831: 1994(84) FJR 515: 1994(68) FLR 762:

1994(1) LLJ 808: 1994(1) LLN 895.

While it is true that justifiability of the charges at the stage of initiating a

disciplinary proceeding cannot possibly be delayed into by any Court pending inquiry

but it is equally well settled that in the event there is an element of malice or mala fide,

motive involved in the matter of issue of a charge sheet or the concerned authority is so

biased that the inquiry would be a mere farcical show and the conclusions are well

known then and in that event law courts are otherwise justified in interfering at the


earliest stage so as to avoid the harassment and humiliation of a public official. It is not

a question of shielding any misdeed that the Court would be anxious, it is the due

process of law which should permeate in the society and in the event of there being any

affection of such process of law that courts ought to rise up to the occasion. State of

Punjab v. V.K. Khanna, AIR 2001 SC 343: 2000 AIRSCW 4472: 2001(2) SCC 330:

2001 SCC(L&S) 1010: 2000(3) JT Supp 349: 2000(5) SLR 734 (SC): 2001(1) ESC 81:

2001(1) Pun LR 262: 2001(1) UPLBEC 280.

When charges pertain not only to administrative irregularities but also financial

irregularities and disobedience, quashing of preliminary enquiry on the ground of

vagueness of allegations is not proper, especially when regular enquiry was yet to be

conducted. Held that the learned Single Judge had rightly dismissed the writ petition as

premature and it was not proper for the Division Bench to set aside that order and quash

the constitution of the Commission of Enquiry and holding of a preliminary enquiry.

Held further that it should have been appreciated that it was futile to pass such an order

as the Executive Committee had already taken a decision by that time to hold a regular

full- fledged enquiry and appointed an Enquiry Officer for that purpose. Rt. Rev.

B.P.Sugandhar Bishop in Medak v. D. Dorothy Dayasheela Ebeneser, 1996(4) SCC

406: 1996(2) SLR 818: 1996 SCC(L&S) 963: 1996(2) LLJ 936: 1996(74) FLR 1927.

64. Malafide chargesheet— A departmental proceeding for a government

servant brings untold misery and in the case in hand not only the servant concerned was

fined and thereby humiliated in the eyes of his colleagues, friends and relations which

he could vindicate only when the Government set aside the same in appeal. It is not

expected from a Deputy Commissioner of Police to blindly accept the report of

Inspector without even examining the statements recorded him in course of enquiry and

had he examined the same, he would not have relied upon the false and frivolous report.

While condemning the role of such officials, departmental enquiry, set aside. Najamal

Hussain Mehadi v. State of Maharashtra, 1997(1) SCC 532: AIR 1996 SC 2691:

1996(5) SLR 160: 1996(74) FLR 2210: 1997(1) SLJ 149.

65. Non-compliance of Rule 14(4) — A list of all the documents and witnesses

by which each article of charges is proposed to be sustained is to be given to the

Government servant under rule 14(4). The enquiry is liable to be quashed on the

grounds of non-compliance of rule 14(4). H.L. Sethi v. Municipal Corporation, Simla,

1982(2) SLJ 694: 1983 Lab IC 73; Court can give direction for supply of such

documents. Deepak Puri v. State of Haryana, 2000(10) SCC 373: 2001(1) LLJ 129.

Reliance on a document not annexed to the memorandum of charge for reaching the

conclusion of guilt is not proper. Ministry of Finance v. S.B. Ramesh, 1998(3) SCC

227: AIR 1998 SC 853: 1998(78) FLR 700: 1998(1) SLR 618: 1998(2) SLJ 67: 1998

Lab IC 623: 1998(1) LLN 968.

66. Non-supply of Copy of Complaint — Copy of statement which is basis of

departmental proceedings not supplied to delinquent officer. Document was necessary

to enable him to cross-examine complainant. Order of dismissal set aside, reasonable

opportunity to defend having not been given. Kamta Pandey v. State of Bihar, AIR

1970 Pat 23: 1970 Lab IC 53; State of M.P. v. Chintaman Sadashiva, AIR 1961 SC 1623.


For denial of opportunity for non-supply of copy of report see Dikshita v.

Union of India, AIR 1986 SC 186. See also V. Sammugam v. Union of India, ATR

1986(2) CAT 226.

The enquiry officer told the delinquent to secure the copy of complaint on

payment of requisite charges. A delinquent officer is entitled to get all the documents

and the statements of the witnesses upon which the State wants to reply during the

course of the enquiry. Refusal to supply copies without payment is a denial of adequate

opportunity to the delinquent officer to defend himself. State of Haryana v. Som Dutt,

1981(1) SLR 647.

When the original complaint was not placed on the record, it was held that the

absence of original complaint, therefore, indicated that there was, in fact, no complaint

in existence. Kuldeep Singh v. Commissioner of Police, AIR 1999 SC 677: 1998 Supp

(3) SCR 594: 1999(2) SCC 10: 1999(1) SLR 283: 1999(1) LLJ 604: 1999 Lab IC 437:

1999(80) ECR 265: 1999(2) LLN 74: 1999(81) FLR 630: 1999(95) FJR 80: 1999(3)

SLJ 111.

67. Non-supply of Copy of Reports, Basis of Charge — Inspection of report

on which charge-sheet was based not allowed and petitioner submitted his reply to

charge-sheet without inspecting the record. Copy also not supplied in spite of repeated

requests. Impugned order set aside. Trilok Nath v. Union of India, 1967 SLR 759 (SC);

State of M.P. v. Chintaman Sadashiv Waishampayan, AIR 1962 SC 1623; Kalyan Singh

v. State of Punjab, 1967 SLR 129; Dhup Singh Kanungo v. State of Haryana, 1970 Lab

IC 477: 1969 SLR 436.

It is true if the preliminary investigation report is not relied on either by the

enquiry officer or by the punishing authority, such report is not required to be disclosed

to the delinquent as a matter of course. But reasonable opportunity of being heard

cannot be defined precisely and such opportunity depends on the facts and

circumstances of each case. There are certain documents which even if they are not

relied by the Enquiry Officer to support the charges against the delinquent, such

documents are nevertheless required by the delinquent to defend his case. Where the

charges were framed on the basis of the Investigation Report and the calculation made

by the Investigation Officer in the said Report was referred to in the charge-sheet in the

facts and circumstances of the case, the preliminary investigation report should have

been furnished to the delinquent to give him reasonable opportunity to defend himself.

Dola Gobinda Das v. Union of India, 1981(2) SLR 185.

68. Non-supply of Statement of Allegations — Each charge was so bare that

it was not capable of being intelligently understood and was not sufficiently definite to

furnish materials to the appellant to defend himself. The statement of allegations on

which each charge was based was never supplied to him. Held, the appellant was denied

a proper and reasonable opportunity of defending himself. Order of dismissal set aside,

Surath Chandra Chakravarty v. State of West Bengal, AIR 1971 SC 752: 1971(2) SLR

103: 1971(2) Lab IC 456; see also Khem Chand v. Union of India, AIR 1958 SC 300;

A.K. Narayan Rao v. General Manager, S.Rly., 1969(3) SLR 479; Baidhar Das v.

State, AIR 1970 Ori 220.


69. When copies of Proceedings and Findings of Preliminary Enquiry be

Supplied — Division Bench of Mysore High Court in A.K. Narayan Rao v. General

Manager, Southern Railway, reported in 1969(3) SLR 479, held that non-supply of the

copies of the proceedings and the findings recorded in the preliminary enquiry which

preceded the disciplinary proceedings vitiated the punishment which was imposed on

the delinquent official. Case law on the point was discussed by the Punjab High Court

in Malvinderjit Singh v. State of Punjab, 1970 SLR 660 (FB) and it was held that a civil

servant is not entitled to copy of enquiry report conducted by the Vigilance Department.

The Supreme Court in Krishna Chandra Tandon v. Union of India, 1974 SLJ 415:

1974(2) SLR 178: AIR 1974 SC 1589: 1974(4) SCC 374: 1974 Lab IC 1010, has held

that these documents are of the nature of inter-departmental communication between

officers preliminary to the holding of enquiry and have really no importance unless the

Enquiry Officer wants to rely on them for his conclusion. In that case it would only be

right that copies of the same should be given to the delinquent. Since neither the

Enquiry Officer nor the Disciplinary Authority relied on the preliminary report for his

findings, the delinquent was not entitled to its copy.

There was a preliminary enquiry before the proceeding was started by issuing a

charge-sheet. The report of preliminary enquiry was not given to the petitioner. The

report was, however, considered by the enquiry officer in his report. The copy of the

report of preliminary enquiry must have been supplied to the petitioner to enable him to

cross-examine the witnesses with reference to their earlier statements. Order of

dismissal quashed. J.K. Mishra v. Director General of Police, CRPF, 1981(1) SLJ 428:

1981(2) SLR 182.

If the petitioner neither requests for copy of statement of witnesses or seeks

cross-examination of the witnesses then statements recorded in preliminary enquiry

need not be given to the petitioner. K.G.P. Nair v. S.D.O., (Telegraphs), 1990(7) SLR

262, 264, 265 para 10 (CAT Ernakulam). See also Capt. Randhir Singh Bhullar v. State

of Punjab, 1997(3) SLR 72; Vijay Kumar Nigam v. State of M.P., AIR 1997 SC 1358:

1996(11) SCC 599: 1997(1) CLT 263 (SC); 1997(1) SLR 17 (SC).

There is no rule requiring preliminary enquiry report to be served upon

delinquent employee and no prejudice shown to have been caused by non-supply of

such report. Held that interference by Tribunal is not called for. Superintendent,

Government T.B. Sanatorium v. J. Srinivasan, 1998(8) SCC 572: 1999(3) LLJ 352.

70. Whether Copies of Documents Shown in the List of Documents should

be Delivered to Delinquent, along with Charge-sheet — Rajinder Sachar, J. did not

agree with the argument that “because copies of documents were not supplied this per

se vitiates the enquiry”. He held that availability of copies of documents relied on by

department is to give a reasonable opportunity to the employee to defend himself. When

all the documents were made available and inspection was done by delinquent, it cannot

be said that no reasonable opportunity was given to the delinquent to defend himself.

B.L. Kohli v. Union of India, 1974(2) SLR 679.

Where the enquiry officer relied on documents which were not mentioned in

the list of documents supplied to the charge official, the enquiry was quashed. H.L.Sethi

v. Municipal Corporation of Simla, 1982(2) SLJ 694: 1983 Lab IC 73; In another case


direction was given to supply the documents. Deepak Puri v. State of Haryana,

2000(10) SCC 373: 2001(1) LLJ 129.

When even the documents relied upon by the department in establishing the

charge have not been given to the delinquent, the conclusion is irresistible that the

delinquent had been denied a reasonable opportunity to defend himself in the

proceeding. Pepsu Road Transport Corporation v. Lachhman Dass Gupta, 2002(4) SLR

143 (SC): 2002(1) LLJ 544: 2001(9) SCC 523.

71. “Whether Desired to be Heard in Person”, a Valuable Right — The

right “to be heard in person” as provided in rule 14(4) is a valuable right and a denial of

this right may result in denial of reasonable opportunity. State of U.P. v. C.S. Sharma,

AIR 1963 All 94.

72. Opportunity to Explain to be Real — Opportunity to explain should be

real and not ritualistic; effective and not illusory and must be followed by a fair

consideration of the explanation offered. Ibrahim Kunju v. State of Kerala, AIR 1970

Ker 65.

73. Rights of Employee During Enquiry — Petitioner was supplied with

charge-sheet and was asked to show cause. He did not give any explanation to show

cause. He was not given any notice regarding the date of hearing when evidence was to

be led on behalf of the employer. Order of dismissal passed by punishing authority held

legal. It is well known that delinquent officer has rights at different stages of the

proceedings. His default at one stage will not take away his other rights. Puran

Chandra Das v. Chairman, State Transport Authority, AIR 1970 Orissa 1; Khem Chand

v. Union of India, AIR 1958 SC 300: 1958 SCJ 497: 1958 SLR 1081.

Sub-rule 5(a):

74. Revival of Proceedings After Long Lapse of Time, Dropped — Charges

were framed against the petitioner and he submitted his explanations. He also submitted

his explanation to the proposed punishment. For about three and half years he did not

hear any thing. During the interval, his temporary promotion was regularised. He was

also confirmed. Then a communication was received by him to show cause and after

receipt of reply, he was reduced in rank. Held, under the circumstances of the case the

petitioner is entitled to contend that his earlier explanation must be deemed to have

been accepted by the deptt. and the proceedings must be deemed to have been dropped

and there was no justification to revive the same. Order set aside. E.S. Athithyaraman v.

Commissioner, Hindu Religious and Charitable Endowment, 1971(2) SLR 41: 1971 Lab

IC 452: AIR 1971 Mad 170.

Though there was delay of 6 years between the occurrences and the inquiry,

there was full opportunity given to the appellant who had never taken the plea that the

delay had prejudiced him. It was held that inquiry was not vitiated by the delay. G.C.

Jain v. Union of India, 1988(7) SLR 256 (CAT Madras).

Sub-rule 5(a) and (b):

75. Disciplinary Authority Holding Enquiry himself, Bias of — Where from

all the circumstances it is clear that the petitioner could reasonably have an


apprehension that the disciplinary authority who was holding the enquiry himself was

biased against him and had made up his mind to punish him, this bias vitiates the entire

enquiry proceedings, Brindaban v. State of U.P., 1973(1) SLR 11; Keshri Mal v. State

of Rajasthan, 1979(3) SLR 1.

76. Enquiry Officer, Appointment of — An enquiry can only be ordered

against a Government servant by an authority competent to take disciplinary action

against him. Authority higher to be disciplinary authority cannot appoint enquiry

officer. Enquiry held by an officer without proper authority is void. C.D. Prabhu v.

Deputy Commissioner, 1969 SLR 362; R.K. Sanayaima Singh v. Chief Commissioner,

Manipur, AIR 1965 Manipur 46; Shardul Singh v. State of M.P., AIR 1966 MP 193;

R.Suryanarayan v. State of A.P., 1967(2) Andh WR 253; Baldev Singh v. Secretary to

Government, Punjab, 1969 SLR 689: 1968 Cur LJ 625.

In absence of any prejudice or allegations, order of disciplinary authority

should not have been set aside and action of disciplinary authority should not have been

quashed only on a technical ground that instead of ad hoc disciplinary authority

original/actual disciplinary authority had appointed the enquiry officer. Assistant

Superintendent of Post Offices v. G. Mohan Nair, AIR 1999 SC 2113: 1999(1) SCC

183: 1998(9) JT 361: 1998(6) SLR 783: 1999(2) LLJ 986: 1999 Lab IC 2349: 1999(3)

LLN 420: 2000(84) FLR 91.

In regard to the officer competent to hold inquiry, it was held that the inquiry

conducted by an authority subordinate to appointing authority, is not illegal. Joint

Secretary to the Home Department, Madras v. R. Ramalingam, 1996(10) SCC 234:

1996(5) SLR 311: 1996(74) FLR 2525: 1997(1) LLJ 115: 1997(3) LLN 306.

77. Enquiry Officer, Against whom petitioner has Accusation — A person

against whom the petitioner had made accusations of misappropriation cannot be made

enquiry officer to enquire into the charges against the petitioner. The appointment

offends the rules of natural justice. B. Ramchandra Rao v. Registrar, Co-operative

Society, 1970 SLR 7 Mysore.

There is, a distinction between a defect in the enquiry and a lapse which almost

destroys the enquiry. Where the lapse is of the enquiry being conducted by an officer

deeply biased against the delinquent or one of them being so biased that the entire

enquiry proceedings are rendered void, the appellate authority cannot repair the damage

done to the enquiry. Where one of the members of the Enquiry Committee has a strong

hatred or bias against the delinquent of which the other members know not or the said

member is in a position to influence the decision- making, the entire record of the

enquiry will be slanted and any independent decision taken by the appellate authority

on such tainted record cannot undo the damage done. Besides where a delinquent is

asked to appear before a committee of which one member is deeply hostile towards

him, the delinquent would be greatly handicapped in conducting his defence as he

would be inhibited by the atmosphere prevailing in the enquiry room. Justice must not

only be done but must also appear to be done. Tilak Chand Magatram Obhan v. Kamala

Prasad Shukla, 1995 Supp (1) SCC 21: 1994(28) ATC 750: 1995(5) SLR 809.


78. Enquiry, Officer, Bias of — (i) Bias may be generally defined as partiality

or preference. It is true that any person or authority required to act in a judicial or

quasi-judicial matter must act impartially. “If however, “bias” and “partiality” be

defined to mean the total absence of pre-conceptions in the mind of the judge, then no

one has ever had a fair trial and no one ever will. The human mind, even at infancy, is

no blank piece of paper. We are born with predispositions and the processes of

education, formal and informal, create attitudes which precede reasoning in particular

instances and which, therefore, by definition, are prejudices”, [per Frank J in re:

Linahan (1943) 138F 2nd 650, 652].

It is not every kind of bias which in law is taken to vitiate an act. It must be a

prejudice which is not founded or reason, and actuated by self interest — whether

pecuniary or personal. Because of this element of personal interest, bias is also seen as

an extension of the principle of natural justice that no man should be a judge in his own

cause. Being a state of mind, a bias is sometimes impossible to determine. Therefore,

the Courts have evolved the principle that it is sufficient for a litigant to successfully

impugn an action by establishing a reasonable possibility of bias or proving

circumstances from which the operation of influences affecting a fair assessment of the

merits of the case can be inferred. G.N. Nayak v. Goa University, 2002(1) SCR 636:

AIR 2002 SC 790: 2002(2) SCC 712: 2002(1) SCJ 497: 2002(2) SLJ 308.

(ii) The function of an Enquiry Officer is that of a judge dealing with a case.

Such an officer should not be personally interested in the matter. He should be a person

having an open mind, a mind which is not biased against the charged officer. K. Sundra

Rajan v. Dy. Inspection General of Police, 1973 SLJ 100: 1972 SLR 723. In a

departmental enquiry if the delinquent officer reasonably apprehended that the Enquiry

Officer was biased against him, the entire enquiry proceedings were vitiated. Brindaban

v. State of U.P., 1973(1) SLR 111; Balwant Rai Mahajan v. V.P. Khosla, 1979(1) SLR 391.

(iii) The Commissioner (Enquiry Officer) in one of his letter stated that he had

heard witnesses and satisfied himself that Sharma was definitely corrupt. He was

biased. State of U.P. v. C.S. Sharma, 1967(II) SCWR 648: AIR 1968 SC 158: 1967(3)

SCR 848: 1969(1) LLJ 509: 1968 Lab IC 190: 1968(1) SCJ 262; Rai Bahdur Singh v.

S.D.O., 1975 Lab IC 682.

(iv) If a reasonable man would think on the basis of the existing circumstances

that the enquiry is likely to be prejudiced, that is sufficient to quash the decision.

Parthasarthi v. State of A.P., 1973(II) SCWR 464: AIR 1973 SC 2701: 1974(1) SCR

697: 1974(3) SCC 459: 1973 Lab IC 1607: 1973(2) LLJ 473: 1974 SLJ 286.

(v) Bias has to be established either by evidence or on the materials on record

which are relied upon by the Enquiring Officer in coming to his conclusion about the

guilt of the delinquent. Syed Rahimuddin v. Director General, C.S.I.R., 2001(9) SCC

575: 2001(3) JT 609: AIR 2001 SC 2418: 2001(2) LLJ 1246: 2002(4) SLR 165: 2001

Lab IC 2367.

79. Enquiry Officer who held Preliminary Enquiry — Officer who held

preliminary enquiry was appointed enquiry officer. This cannot be indicative of bias

against the civil servant. Govind Shankar v. State of M.P., AIR 1963 MP 115.


80. Enquiry officer, Prejudice of — The fact that the punishing authority

considered the report and comes to his own conclusion would not cure the defect

attached to the enquiry conducted by an officer having bias against the charged officer.

The entire proceedings would be vitiated as its foundation is itself vitiated by the bias

of Enquiry Officer. K. Sundera Rajan v. Dy. Inspection General of Police, 1973 SLJ

100: 1972 SLR 723.

81. Enquiry Officer to Act with Detachment — Enquiry officer must act with

the detachment of a judge, since he is professing to exercise that dignified function.

Choudhary v. Union of India, AIR 1956 Cal 602; P. Sreeramulu v. State of A.P., AIR

1970 AP 114.

82. Enquiry Officer to have Open Mind — The rule of natural justice is that

bias vitiates the finding. Enquiry officer selected should be a person with an open mind.

An open mind should be kept with regard to charges made against a Government

servant until the charges are proved. Rao Rallapalli Suryanarayna v. State of Andhra

Pradesh, 1968 SLR 77; Amar Nath v. The Commissioner, 1969 Cur LJ 484.

83. Enquiry Officer not to Cross-examine Defence Witnesses — Cross

examination of defence witnesses by the Enquiry Officer was in plain violation of the

principles of natural justice and consequently the inquiry proceedings were vitiated.

Abdul Wajeed v. State of Karnataka, 1981(1) SLR 454: 1981(1) SLJ 388.

84. Enquiry Officer, Whether Independent — Mere fact that enquiry officer

is subordinate to the disciplinary authority is no indication of the fact that he could not

form his own independent judgement and was under the influence of his superior.

Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269; Ram Naresh Lal v.

State of U.P., AIR 1967 All 384.

85. Enquiry Officer, Used his Personal Knowledge of Facts — Because

enquiry officer has prior knowledge of the facts on which the charges have been drawn,

bias can not be alleged. Anil Behari Saran v. State of Bihar, AIR 1967 Pat 43. Where

the enquiry officer has taken into consideration his personal knowledge about the

petitioner while deciding as to whether petitioner is guilty of charges levelled against

him, held, this is a serious defect in conducting the enquiry against the petitioner. If the

enquiry officer wanted to use his personal knowledge, he should have offered himself

as a witness, so that the petitioner could have cross examined him. Satya Prakash

Varshney v. Union of India, 1980(3) SLR 64; Ambala Board of Education v. Beant

Singh, 1982(2) SLR 317.

86. Director Authorised to Conduct Enquiry Reverted as Dy. Director: No

Jurisdiction to Hold Enquiry — Government only authorised the Director to conduct

the enquiry. When Director reverted as Deputy Director he examined all witnesses,

completed the enquiry and had drawn up the report of enquiry when Government

ordered that Deputy Director might continue the enquiry. The Director could not

delegate the power to Deputy Director to continue the enquiry. The Inquiring Officer

(Dy. Director) had no jurisdiction to conduct the enquiry. S. Parthasarth v. State of

A.P., 1973(II) SCWR 464: AIR 1973 SC 2701: 1974(1) SCR 697: 1974(3) SCC 459:

1973 Lab IC 1607: 1973(2) LLJ 473: 1974 SLJ 286.


Sub-rule (5)(c).

87. Legal Practitioner, Meaning of — “Legal Practitioner” means advocate,

vakil or attorney of any High Court, a pleader, mukhtar or revenue agent” “advocate”

means an advocate entered in any roll under the provisions of Advocates Act, 1961;

“attorney” include a solicitor (Section 2, Advocates Act, 1961).

Sub-rule (7).

88. Falling to Appear for Non-payment of Subsistence Allowance — Appellant was suspended and was called upon to appear before Enquiry Officer. He

made representations to the Government and the Enquiry Officer that he was not being

paid subsistence allowance and on that account he was unable to appear at the place of

enquiry which was five hundred miles away from the place he was residing. Enquiry

held ex prate and he was dismissed. Held, the appellant did not receive a reasonable

opportunity of defending himself in the enquiry proceedings and the order of dismissal

cannot stand. Ghanshyam Das Shrivastava v. State of M.P., 1973(I) SCWR 391: AIR

1973 SC 1183: 1973(1) SCC 656: 1973(1) LLJ 414: 1973 SLJ 356: 1973(27) FLR 466;

however, see Banshidhar Panigarhi v. State of Orissa, 1975(2) SLR 725.

Non-payment of subsistence allowance from the date of suspension till removal

and employee not appearing in departmental enquiry and giving financial crunch on

account of non-payment of subsistence allowance and illness as reason for not

participating in Disciplinary Proceedings. Held that it was a clear case of breach of

principle of natural justice on account of denial of reasonable opportunity to delinquent

to defend himself in the departmental enquiry. Jagdamba Prasad Shukla v. State of

Uttar Pradesh, AIR 2000 SC 2806: 2000(7) SCC 90: 2000(2) LLJ 1513: 2000 Lab IC

3111: 2000(5) SLR 164: 2000(87) FLR 1: 2000(97) FJR 304.

89. Failing to Appear for Non-payment of Certain Amount of Salary — Petitioner was in enjoyment of his full salary of Grade II. He did not participate in the

enquiry because he was not given the pay of Grade I difference approximately Rs. 25 to

Rs. 30 p.m. Not sufficient reason for absenting from enquiry. Naseeruddin Nazar v.

State of Rajasthan, 1977 SLJ 182: 1977(1) SLR 696; Ghanshyam Das Shrivastava v.

State of M.P., 1973(I) SCWR 391: AIR 1973 SC 1183: 1973(1) SCC 656: 1973(1) LLJ

414: 1973 SLJ 356: 1973(27) FLR 466, distinguished.

Sub-rule (8).

90. Assistance of Another Government Servant: Affording of — Enquiry

Officer did not afford the appellant necessary facility to have the assistance of another

Government servant in defending him which assistance he was entitled to under the

rule. Reasonable opportunity to defend himself not afford. C.L. Subramaian v.

Collector of Customs, 1972(1) SCWR 540: AIR 1972 SC 2178: 1972(3) SCR 485:

1972(3) SCC 542: 1973(2) SCJ 488: 1972 Lab IC 1049: 1973(26) FLR 170: 1972(1)

LLJ 465.

Clause (8) has been made for the benefit of the charged Government servant in

case he wants to take the assistance of another Government servant in order to enable

himself to defend properly. It is not mandatory for the authorities to provide the


assistance to an employee of a person of his choice alone. In case the choice made by a

Government servant is such that it is not possible or practicable for the Government to

comply with the said request of Government servant, then it cannot be held that clause

(8) has been violated. This clause is directory and not mandatory. Under this clause if a

Government servant cannot take the assistance of any other Govt. servant, then right

has been given to him to apply before the disciplinary authority for providing assistance

of a legal practitioner. After considering the facts and circumstances of the case it is

open to the disciplinary authority to provide such assistance to the charged servant. The

extent of the right of a charged employee to get the assistance of another Government

servant or that of a lawyer depends upon the facts and circumstances of each case.

Mahabir Singh Gaur v. Union of India, 1978 SLJ 690: 1979(1) SLR 245; Krishna

Gopal Sharma v. Union of India, 1979(2) SLR 839.

The respondent engaged the service of M, another Government servant in

whose presence two witnesses for prosecution were examined. Thereafter, M. resigned

from Govt. service and took up legal practice. Respondent repeatedly requested for

permission to engage the service of M, but the departmental authorities refused the

permission. Held, the respondent will be allowed to engage the service of

Commissioner of IncomeTax v. Rabindra Nath Chatterjee, 1979(1) SLR 134 (SC).

Where the department is represented by a presenting officer and the delinquent

is a class IV officer who may not be able to understand technicalities, the delinquent

must be informed that he is entitled to be defended by a Government servant. If he is

not informed, and the overall view shows that he is at disadvantage the inquiry is

vitiated. Bhagat Ram v. State of U.P., 1983(1) SLR 626 para 5 (SC).

The law in this country does not concede an absolute right of representation to

an employee in domestic enquiries as part of his right to be heard and that there is no

right representation by some body else unless the rules or regulation and standing

orders, if any, regulating the conduct of disciplinary proceedings specifically recognize

such a right and provide for such representation. Irrespective of the desirability or

otherwise of giving the employees facing charges of misconduct in a disciplinary

proceeding to ensure that his defence does not get debilitated due to inexperience or

personal embarrassments, it cannot be claimed as a matter of right and that too as

constituting an element of principle of natural justice to assert that a denial thereof

would vitiate the enquiry itself. Held that denial of representation by an employee

against whom two disciplinary matters were pending held to be not arbitrary. Indian

Overseas Bank v. Indian Overseas Bank Officers” Association, 2001(9) SCC 540:

2001(8) JT 306: AIR 2001 SC 4007; See also N. Kalindi & Ors. v. M/s Tata Locomotive

& Engineering Co. Ltd., AIR 1960 SC 914, Dunlop Rubber Co. (India) Ltd. v. Their

Workmen, AIR 1965 SC 1392; Crescent Dyes & Chemicals Ltd. v. Ram Naresh

Tripathi, 1993(2) SCC 115; Bharat Petroleum Corpn. v. Maharashtra General Kamgar,

1999(1) SCC 626.

Assistance of a friend to the choice of the employee granted in the course of

departmental inquiry but request for assistance of friend before the State Government in

the revision/appeal was denied. Held that denial of assistance violate principles of


natural justice and therefore, order of termination is illegal. Surjit Singh Kirpal Singh v.

State of Gujarat, 1993(3) SLR 664 Guj.

Inquiry officer allowed representations of employee by a person employed in

different division but denied opportunity to be represented by a person in same

Division. Held that principles of natural justice were not violated by Inquiry Officer.

Life Insurance Corporation of India, Bombay v. Subhash N. Ghodke, 1999(5) SLR 369 Bom.

91. Assistance by Government Servant having Two Pending Disciplinary Cases on Hand — Declining for assistance by Govt. servant having two pending

disciplinary cases on hand cannot be said denial of reasonably opportunity to delinquent

official under Rule 14(8). Issac Joseph v. Senior Supdt. of Post Offices, Ernakulam,

1982(2) SLR 269: 1983 Lab IC 145.

92. Approval of Disciplinary Authority not Necessary — Government

servant can take the assistance of any other Govt. servant to present the case on his

behalf. The approval of Disciplinary Authority is not necessary. K. Santhanam v. Union

of India, 1969 SLR 752: 1970 Lab IC 98 Mysore. This is subject to Note to Rule 8(a)

and sub-clause (b) to Rule 8.

93. Assistance by Retired Government Servant — A Govt. servant can take

the assistance or retired Govt. servant subject to the condition that the said Govt.

servant retired from the service under the Central Government, at the time of

appearance has only two pending disciplinary cases in hand, and that he retired not

more than three years ago. A certificate that he had only two cases in hand at that time

and a declaration regarding the date of retirement should be filed before the inquiry

officer. If the said retired Govt. servant is also a legal practitioner, the restrictions

regarding his engagement given in sub-rule (8)(a) would apply to him.

94. Legal Practitioner, engagement of, When can be Allowed — The normal

rule in departmental proceedings is that delinquent cannot claim as a matter of right that

he should be allowed to be represented by legal practitioner when the presenting officer

appointed by disciplinary authority is not a legal practitioner. It will depend on the

circumstances of each case whether the denial to be represented by a lawyer amounted

to denial of reasonable opportunity.

The basic principle is that an employee has no right to representation in the

departmental proceedings by another person or a lawyer unless the Service Rules

specifically provide for the same. The right to representation is available only to the

extent specifically provided for in the Rules. Bharat Petroleum Corporation Ltd. v.

Maharashtra General Kamgar Union, AIR 1999 SC 401: 1999(1) SCC 626: 1999(1)

LLJ 352: 1999 Lab IC 430: 1999(1) LLN 654: 1999(81) FLR 358.

In Dr. K. Subba Rao v. State, AIR 1957 AP 414, it was observed, “It might be

that, in the opinion of the Enquiry officer, the case did not require specialised

professional help but from the point of view of the petitioner, it was a serious matter

which affected his official carrier and which might, as indeed it has happened in this

case, resulted in his dismissal from service, rightly or wrongly when the petitioner was

under a reasonable apprehension that the enquiry was the result of preconceived plan

and a concerned action on the part of the department, his request for professional help


was certainly justified and the enquiry officer should have given him that opportunity.

His refusal to accede to that simple request has certainly deprived the petitioner in the

circumstances of the case of an opportunity to defend himself”.

In Nipendra Singh v. Chief Secretary, Government of West Bengal, AIR 1961

Cal 1, it was held that having regard to the volume of depositions and the number of

witnesses and documents, the refusal to allow the assistance of a lawyer to the charged

officer notwithstanding that he was himself a District Judge, amounted to denial of

reasonable opportunity under Article 311(2) of the Constitution.

A Division Bench of Andhra Pradesh while deciding the case: Rao Rallapalli

Suryanarayan v. State of A.P., 1968 SLR 77 observed: “We are not able to find any

possible reasons why the Enquiry Officer should have rejected such a simple request of

the petitioner to engage a lawyer, though the enquiry relates to question of fact

nevertheless, the manner in which the enquiry is to be conducted and the scope and

intricacies involved in the interpretation of Article 311, are certainly matters on which

the petitioner should have the guidance of legally trained person. If the petitioner is not

really capable of entering on his defence with the degree of efficiency except with the

assistance of a lawyer, any opportunity given to him to defend the case by himself

cannot be regarded as an opportunity in real sense of the term.”.

In Baidhar Das v. State, AIR 1970 Ori 220, Anti-corruption Inspection was

nominated to present case in support of charges which was objected to by delinquent

but his objection was rejected. The representation of delinquent by lawyer was also not

allowed. Large number of witnesses and documents were produced in support of the

charges. Held, in the facts and circumstances of the case, the disciplinary authority

acted contrary to spirit of Article 311(2) of the Constitution. The enquiry was thus vitiated.

Venkateswara Rao J. in State of A.P. v. Mohammad Sarwar, 1971(1) SLR 507,

observed: “It is true that the question of granting or refusing to grant permission to

engage a lawyer is in the discretion of the Enquiry Officer, but this discretion has got to

be exercised judiciously and not in capricious manner. Withholding of permission to

engage a lawyer in the circumstances of the case cannot for a moment be said to be

resulted of proper exercise of the discretion vested in the authority concerned”. The

circumstances of the case were that the respondent and another person were facing a

joint enquiry, a number of witnesses were examined besides making numerous

documents in the course of enquiry, the respondent was not a highly educated man and

he should have been in a very disturbed state of mind during the enquiry.

The Supreme Court in C.L. Subramanian v. Collector of Customs, 1972(1)

SCWR 540: AIR 1972 SC 2178: 1972(3) SCR 485: 1972(3) SCC 542: 1973(2) SLR

415: 1972 Lab IC 1049: 1973(26) FLR 170: 1972(1) LLJ 465: 1973(2) SCJ 488, held

that the fact that case against the appellant was being handled by a trained prosecutor

was a good ground for allowing the appellant to engage a legal practitioner to defend

him lest the scale should be weighed against him. Since disciplinary authority failed to

exercise power conferred on it under the rule, there was denial of reasonable opportunity.

The Calcutta High Court Division Bench in Director General of Post

&Telegraphs v. Nani Gopal Majumdar, 1973(2) SLR 366: 1973 SLJ 852, held that it


seems clearly obligatory upon the disciplinary authority to, firstly allow the assistance

of a legal practitioner to Govt. servant if the person nominated by the disciplinary

authority for presentation of its case is also a legal practitioner; even if it is not so, then

also it is equally obligatory upon the disciplinary authority to consider all other relevant

circumstances of the case and then either to record or refuse such permission. In other

words, even where there is no legal practitioner nominated on behalf of the disciplinary

authority, the disciplinary authority is bound to consider the facts and circumstances of

the given case before it could refuse permission to engage a legal practitioner to assist

the Govt. servant. It would, therefore, be a clear breach of duty on the part of the

disciplinary authority if it would refuse to allow the petitioner to engage a legal

practitioner only on the view that a legal practitioner was nominated by the disciplinary

authority in presenting its own case. See also S.Y. Venkateswaralu v. Director General,

1978 SLJ 434: 1978(2) SLR 309.

Where there was no conflict of interest between the appellant and Concurrent

finding of Court below Concurrent finding of Court below three other civil servants

and the counsel representing the other three civil servants was allowed to represent the

appellant and it is not proved that counsel was unable to conduct the defence properly,

it cannot be said that the appellant had no reasonable opportunity to defend himself. R.

Jeevaratnam v. State of Madras, AIR 1966 SC 651: 1966(2) SCR 204: 1966(II) SCWR

464: 1967(1) SCJ 404.

In Hari Prasad Singh v. Commissioner of Income tax, AIR 1972 Cal 27 and

Krishna Chandra Tandon v. Union of India, 1974 SLJ 415: 1974(2) SLR 178: AIR

1974 SC 1589: 1974(4) SCC 374: 1974 SLJ 415, the appellant was Income Tax Officer

and all he had to do in the course of enquiry was to defend the correctness of the

assessments made by him and no witnesses were to be cross-examined. It was held that

the refusal to allow the assistance of an advocate did not deprive the appellant of a

reasonable opportunity to defend himself. See also, Kishan Gopal Sharma v. Union of

India, 1981(1) SLR 775: 1979(2) SLR 839; Sunil Kumar Banerjee v. State of West

Bengal, 1980(2) SLR 147: AIR 1980 SC 1170: 1980(3) SCR 179: 1980(3) SCC 304:

1980(40) FLR 434: 1980(2) SCJ 327. In Dr. Tauhid Hossain v. State of West Bengal,

1982(2) SLR 602, the rejection of the request for appointment of a lawyer was not held

in violation of principle of natural justice as there was a simple charge of

misappropriation of Rs. 100/- only.

The above case law should be kept in view by the Disciplinary Authorities and

the Enquiry Officers while exercising their discretion to permit or refuse the prayer of

delinquent for being represented by a legal practitioner. They should bear in mind that

the long drawn out proceedings may be declared null and void by the Court for their

failure to exercise the discretion judiciously and carefully.

David Annoussamy, Vice Chairman and C. Venkataraman, Member, CAT

Madras have held, with reference to rule 14(8)(a), CCS Rules, that where under the

rules a Government servant has a right to lawyer, the lawyers” expenses must be paid

by the State. S.S. Pandian v. Director of B.C.G. Vaccine Laboratory, 1989(6) SLR 447

(CAT, Madras). The Bench relied, inter alia, on Article 39A of the Constitution used

which the State shall secure that the operation of the legal system promotes justice on


the basis of equal opportunity and shall, in particular, provide free legal aid by suitable

legislation or schemes or in any other way to ensure that opportunities for securing

justice are not denied to any citizen by reason of economic or other disabilities.

As per rule 14(8)(a), CCS (CCA) Rules, it is a right of the Government servant

to have a legal practitioner to assist him, if the presenting officer is a legal practitioner.

In such a case, the legal practitioner appearing on behalf of the Government servant

should be paid by the State. S. Pandain v. Director of B.C.G. Vaccine Laboratory,

Madras, 1990(1) SLT 5 CAT, Madras: 1990(13) ATC 659 Mad.

Defence assistance appointed with the approval of the inquiry officer is entitled

to Travelling Allowance and Daily Allowance for attending the proceedings of the

disciplinary inquiry. R.M. Batish v. Union of India, 1989(7) SLR 647 (CAT

Chandigarh).

When allegations against the Bank officers were simple and not complicated, it

was held that denial of assistance of an advocate was not violative of principles of

natural justice. Harinarayan Srivastav v. United Commercial Bank, 1997 (4) SCC 384.

The enquiry officer has a discretion in the matter of permitting the assistance of

an advocate, Unless it is found that the said discretion has been exercised in a perverse

manner or that the exercise of discretion is vitiated by a mis-direction in law, no

interference is called for under Article 226 with the discretion of the officer. Municipal

Corporation of Greater Bombay v. Chhotalal Gajanan Khole, 1996(3) Scale(SP) 26(2).

95. Legal Practitioner: Payment of fee— Where the employee was unable to

bear the fee of the advocate engaged by him to defend him in Enquiry, direction given

by Tribunal to employer, regarding payment of legal charges payable to his advocate on

the same rate as payable to the presenting officer who was also a legal practitioner, was

upheld. Director BCG Vaccine Laboratory, Madras v. S. Pandian, 1997(11) SCC 346:

1996(2) LLJ 634: 1996(1) LLN 799

Sub-rule (9)

96. Admission of Facts, Whether Plea of Guilty — A person who admitted

the facts and did not wish to cross-examine any witness or lead evidence on his behalf,

on the whole therefore the admission was one of guilty is so far as the facts on which

the enquiry was held. Channabassappa Basappa Happali v. State of Mysore, 1971(2)

SCR 645: AIR 1972 SC 32: 1971(1) SCC 1: 1971 SLR 9: 1972 Lab IC 1: 1971 SCD 74:

1971(2) SCJ 412 .

Where there is no unequivocal admission of the charge, rule 14(9) CCS (CCA)

Rules, 1965 must be complied with. Otherwise the inquiry is vitiated. N.

Sundaramurthy v. Lieutenant Governor, Pondicherry, 1990(6) SLR 212 (CAT Madras).

97. Admission of Delinquent Officer should be Taken as a Whole and Not

only the Part Thereof — The admission amounting to confession or not cannot be split

up. An admission must be used either as a whole or not at all. Satya Prakash Varshney

v. Union of India, 1980(3) SLR 64; State of Punjab v. Sukhdev Singh, 1983(3) SLR 29.


Sub-rules (11), (12) and (13)

98. Sub-rule (11) is a Mandatory Provision — Sub-rule (11) cannot be given

a go by even in an ex prate enquiry under sub-rule (20). Anil Kumar Das v.


The compliance with the procedure as laid down in Rule 14(11) is not a mere

formality. This rule gives an opportunity to a Govt. servant to scrutinise all the

prosecution evidence which is likely to be produced against him and it further gave him

an opportunity to prepare his defence after looking into the other records which are in

possession of Government. Non-compliance with the provisions of this rule is likely to

cause prejudice to the case of the Govt. servant and it will amount to denial of proper

opportunity to him to defend his case. S.D. Bhardwaj v. Union of India, 1982(2) SLJ

515: 1983(1) SLR 32 HP; H.L. Sethi v. Municipal Corporation, Simla, 1982(2) SLJ 694

HP: 1983 Lab IC 73.

99. Whether Government Servant can Take down Notes at the Time of

Inspection under Sub-rule (11)(I) — Rule 14, 11(I) his impliedly provided for

allowing the Govt. servant concerned to take down notes of inspection. Such notes may

amount to a verbatim copy of the entire document or they may be notes in the true sense

of the term. No restriction can be put as to the type of the notes that may be taken of a

particular document. The Govt. servant may take such notes either in ink or in pencil as

he likes. Union of India v. Inder Nath, 1978(1) SLR 1.

100. Not Taking Part in Enquiry and Not Appearing in Enquiry

Proceedings — Where a Government servant against whom proceedings under Rule 14

are taken intentionally absents himself from the enquiry, he cannot make grievance of

the fact that he was not given opportunity to cross-examine some witness or that some

evidence was not produced in his presence. Bhag Singh Bedi v. Union of India, 1974(2)

SLR 687.

The petitioner had no confidence in the Enquiry Officer against whom he had a

grievance and he had openly told him in writing that he did not accept him as an

Enquiry Officer because he was prejudiced, and the averments of the facts which led to

the bias or prejudice in the mind of the Enquiry Officer have been given in the petition

itself. Petitioner did not participate in the enquiry, that did not mean that the Enquiry

Officer was to proceed ex prate. The enquiry from the very inception is vitiated.

Balwant Rai Mahajan v. V.P. Khosla, 1979(1) SLR 391.

101. Access to Files Relied Upon by Enquiry Officer be Allowed — Appellant not allowed access to the files which have been relied upon by the enquiring

officer in his report to substantiate one of the charges against the appellant. Appellant

not given reasonable opportunity of defending himself. S. Parthasarathi v. State of

A.P., 1973(II) SCWR 464: AIR 1973 SC 2701: 1974(1) SCR 697: 1974(3) SCC 459:

1974(1) SLR 427: 1973 Lab IC 1607: 1973(2) LLJ 473: 1974 SLJ 286.

Where the delinquent wishes to inspect the documents and to cross examine the

witnesses, the imposition of punishment without inquiry disregarding the employees

demand is illegal. T.C. Ojha v. Union of India, 1990(2) SLR 240 (CAT, Jabalpur).


An opportunity must be given to the Government servant to scrutinise all the

prosecution evidence likely to be produced against him and to further give him

opportunity to prepare his defence after looking into other records in possession of

Government. S.D. Bharadwaj v. Union of India, 1983(1) SLR 32: 1982(2) SLJ 515 HP.

As per Rule 14(1), CCS (CCA) Rules, the applicant can have inspection of

documents proposed to be relied upon by the prosecution. If delinquent does not apply

for copies, then not giving the copies is not violation of natural justice. A. Philip v.

Director General of Ordnance Factories, Calcutta, 1990(13) ATC 641: 1990(2) SLJ

(CAT) 630: 1990(2) ATJ 552 Mad.

If the Enquiry Officer relies on a document not referred to in the list supplied

to the delinquent the inquiry is liable to be quashed. H.L. Sethi v. Municipal

Corporation, Simla, 1982(2) SLJ 694.

Written brief of Presenting Officer should be supplied to the delinquent,

Collector of Customs v. Mohd. Habibul, 1973(1) SLR Cal 321. Above Calcutta ruling

of 1973 has been incorporated in the Government of India, Ministry of Home Affairs,

Department of Personnel and Admn. Reforms O.M.N.O. 11012/18/77 Estt. (A), dated

2nd

September, 1978, which itself has been quoted by Mahitosh Majumdar J. in Kanwar

Singh v. I.G. Police, C.R.P.F., 1988(4) SLR 575, 576, 577 Cal.

102. Claim of Privilege, Ground for — It is well established that it is a

sufficient ground that documents are “State documents” or “official” or are marked

“confidential” for a privilege to be claimed by the Government. It would not be a good

ground that, if they are produced, the consequences might involve the department or the

Government in Parliamentary discussion or in public criticism or might necessitate the

attendance as witnesses or otherwise of officials who have pressing duties elsewhere.

Neither would it be a good ground that production might tend to expose a want of

efficiency in the Administration or tend to lay the department open to claim for

compensation. The Minister ought not to take responsibility of withholding production

except in a case where the public interest would otherwise be damnified, where

disclosure would be injurious to national defence, or to good diplomatic relations, or

where the practice of keeping a class of documents secret is necessary for the proper

functioning of the public service. Jagannath Dwarkanath Raje v. State of Maharashtra,

1972 SLR 543: 1974 Bom LR 320. See also Niranjan Dass Sehgal v. State of Punjab,

1968 SLR 183: AIR 1968 Pun 255.

Obviously, the burden is heavily on the person claiming the privilege to show

that a disclosure of the contents of the documents would be gravely injurious to public

interest. State of U.P. v. Raj Narain, AIR 1975 SC 865: 1973(3) SCR 333: 1975(4) SCC

428: 1975(1) SLR 541; M.L. Trighatia v. State of Haryana, 1976(1) SLR 20.

103. Privilege cannot be Claimed for — Notings and comments on file

pertaining to departmental enquiry. Ram Deo v. State of Haryana, 1978(2) SLR 68.

Order of termination of service otherwise than in noting portion of the file.

Union of India v. Prakash Lal, 1977(1) SLR 565.


Record of Departmental Promotion Committee. Ram Gopal v. Union of India,

1972 SLR 258; N.K. Panda v. Union of India, 1977(1) SLR 575: 1977(2) SLR 589.

Record of Meeting of Selection Committee. M.L. Trighatia v. State of

Haryana, 1976(1) SLR 20.

Service record in proceedings filed by Govt. servant to challenge his

compulsory retirement. State of U.P. v. Chandra Mohan Nigam, AIR 1977 SC 2411:

1978(1) SCR 521: 1977(4) SCC 345: 1977 Lab IC 1923: 1977 SLJ 633: 1978(1) SLR 12.

Governor dispensed with Enquiry being satisfied that it is not expedient to hold

disciplinary enquiry in interest of security of State. Privilege not allowed in proceeding

under Article 226. T.K. Veerangaiah v. State of Karnataka, 1982(1) SLJ 213: 1981(3)

SLR 86.

(i) Privilege can be claimed for — Noting portion of file of termination of

service. Union of India v. Prakash Lal, 1977(1) SLR 565.

Notings on the file of termination of service and correspondence between

different Ministers do not relate to service record and privilege regarding them can be

claimed. Madan Lal v. State of Punjab, 1981(3) SLR 524.

(ii) Claim of Privilege, Affidavit for — The affidavit should show that each

document in question has been carefully read out and considered and the person making

the affidavit is satisfied that its disclosure would lead to public injury. If the Court is

satisfied with the affidavit it will refuse disclosure. If the court inspite of the affidavit

wishes to inspect the document, it may do so. It is only when injury to public interest

by far out weights the consideration that evidence cannot be admitted and the claim of

privilege is to be upheld. The burden is heavily on the person claiming the privilege to

show that a disclosure of contents of the documents would be gravely injurious to

public interest. The privilege should be claimed generally by the Minister-in-charge of

the department concerned, if not, by the Secretary of the department and the claim

should be in the form of an affidavit. State of Punjab v. Sodhi Sukhdev Singh, AIR 1961

SC 493: 1961(2) SCR 371: 1961(2) SCJ 691; Amar Chand Butail v. Union of India,

AIR 1964 SC 1658; Ram Nath Sahni v. State of Haryana, 1972 SLR 352; State of U.P.,

v. Raj Narain, AIR 1975 SC 865: 1975(3) SCR 333: 1975(4) SCC 428: 1975(1) SLR

541; State of Orissa v. Jagannath, 1975(2) SLR 413; M.L. Trighatia v. State of

Haryana, 1976(1) SLR 20.

104. Documents, Withholding of — Withholding of documents on the ground

that it is confidential in nature or not relevant or it would be against public interest or

security to produce, it should not be done too freely. State of M.P. v. Chintaman

Sadashiva, AIR 1961 SC 1623.

105. Documents, Supply of Copies to Public servant — If the public servant

so required for his defence, he has to be furnished with copies of all the relevant

documents, i.e. documents sought to be relied on by the Inquiry Officer or required by

the public servant for his defence. Daljit Singh Sadhu Singh v. Union of India, AIR

1970 Delhi 52; Trilok Nath”s case, 1967 SLR 759 (SC); State of Gujarat v. Ramesh

Chandra Mashruwala, AIR 1977 SC 1619: 1977(2) SCR 710: 1977(2) SCC 12: 1977(2)


SCJ 302: 1977 Lab IC 849: 1977 SLJ 198; In another case direction was given to supply

the documents. Deepak Puri v. State of Haryana, 2000(10) SCC 373: 2001(1) LLJ 129

and in yet another case after setting aside dismissal matter was again remanded to

enquiry officer. Uttar Pradesh Financial Corporation v. V.P. Sharma, 2001 Supp (1)

JT 26: 2001(3) SLT 272: 2001(4) SLR 605.

One of the principles of natural justice is that a person against whom an action

in proposed to be taken has to be given an opportunity of hearing. This opportunity has

to be an effective opportunity and not a mere pretence. In departmental proceedings

where charge-sheet is issued and the documents which are proposed to be utilised

against that person are indicated in the charge sheet but copies thereof are not supplied

to him in spite of his request, and he is, at the same time, called upon to submit his

reply, it cannot be said that an effective opportunity to defend was provided to him.

State of Uttar Pradesh v. Shatrughan Lal, 1998(6) SCC 651: AIR 1998 SC 3038:

1998(5) SLR 43: 1999(1) SLJ 213: 1998(80) FLR 389: 1998(2) LLJ 799: 1998 Lab IC

3489: 1998(4) LLN 639: 1999(94) FJR 36 .

It is wrong impression that the enquiry officer/disciplinary authority is bound

to supply each and every document that may be asked for by the delinquent

Officer/employee. Their duty is only to supply relevant documents and not each and

every document asked for by the delinquent officer/employee. It was further held that it

was the duty of the delinquent to point out how each and every document was relevant

to the charges or to the enquiry being held against him and whether and how their non-

supply has prejudiced his case. Equally, it is the duty of the Tribunal to record a finding

whether any relevant documents were not supplied and whether such non-supply has

prejudiced the defendant”s case. State of Tamil Nadu v. K.V. Perumal, AIR 1996 SC

2474: 1996(5) SCC 474: 1996 Lab IC 2069: 1996 SCC(L&S) 1280: 1996(3) SLJ 43:

1996(4) SLR 603: 1996(2) LLJ 799: 1996(74) FLR 1999: 1996(2) LLN 883.

Denial of opportunity to inspect the documents mentioned in charge sheet is

improper. In this case the Enquiry Officer directed that the opportunity of inspection

shall be granted at the time of final hearing, it was held that such procedure is improper

and violative of Principle of Natural Justice. Committee of Management, Kisan Degree

College v. Shambhu Saran Pandey, 1994 Supp (5) SCR 269: 1995(1) SCC 404: 1995(1)

SCJ 203: 1995(29) ATC 123: 1995(1) SLR 31: 1995(1) SLJ 156: 1995(2) LLJ 625:

1995(70) FLR 352.

Appointment against a post reserved for ST on the basis of a Scheduled Tribe

certificate issued by the Tehsildar who subsequently cancelled the certificate holding

that the candidate did not belong to Scheduled Tribe. The candidate subsequently

charge sheeted and terminated from service for securing the appointment by fraudulent

means by submitting a false certificate. Termination of service and disciplinary

proceedings challenged on the ground of denial of opportunity of hearing but the record

of disciplinary proceedings showing that he was given a copy of the order of

cancellation of the ST certificate passed by the Tehsildar and he had duly signed the

receipt of the copy of the said order. Held that High Court was not justified in holding

that there was denial of opportunity and he was not confronted with the order of


cancellation of certificate. State Bank of India v. Luther Kondhpan, 1999(9) SCC 268:

2000(1) LLJ 275: 2000(2) LLN 66.

Numerous adjournments were granted to the respondent and on many dates of

hearing, he was stated to be on leave on account of ill- health. Respondent was given

opportunity to inspect the record which he did. Held that it cannot be said that as he

was not given photo copies of certain documents, he had been prejudiced in the defence

of his case. Union of India v. B.K. Srivastava, 1998(6) SCC 340: AIR 1998 SC 300:

1997(77) FLR 786: 1998(1) LLJ 431: 1998(1) LLN 340.

When inspite of non supply of documents, the petitioner could reply to the

show cause notice and could defend his case and in the written brief submitted by him,

no whisper of suffering any prejudice due to non supply of documents was made, held

that no violation of natural justice was made out. Biswanath Ray v. Chairman & M.D.

Allahabad Bank, 2001(1) SLR 6 Cal.

106. Whether Copies of Statements Recorded During Preliminary Enquiry

should be Supplied to Delinquent Government Servant — A civil servant has a right

to two classes of documents in order to defend himself. In the first class are the

documents on which the Inquiry Officer relies, that is to say documents which are

intended to be used by the prosecution agency to prove the charges against the civil

servant. In the second class fall the documents which, even if they are not relied upon

by the Inquiry Officer to support the charges against the civil servant, are nevertheless

required by the civil servant for his defence. Note to sub-rule (11)(ii) confers on the

civil servant a right to ask for copies of statement of witnesses mentioned in the list

referred to in sub-rule (3) in order to enable him to contradict the witnesses to be

examined against him in the departmental enquiry. An important aspect of his defence

is to cross examine witnesses against him by using their previous statements to

contradict them. To deny the copies of statements recorded during preliminary enquiry

would mean the denial of right to defend himself by effective cross-examining by using

the previous statements. Even apart from Note referred to supra such a right is included

in the minimum content of the rules of natural justice applicable to a disciplinary

inquiry. See Jagunat Singh v. Delhi Administration, 1970 SLR 400; Union of India v.

Ravi Dutt, 1973(1) SLR 1222.

Supreme Court in State of Punjab v. Bhagat Ram, AIR 1974 SC 2335: 1975(2)

SCR 370: 1975(1) SCC 155: 1974 Lab IC 1442: 1975(1) SLR 2: 1975 SLJ 88, held:

“The Government servant should be given an opportunity to deny his guilt and establish

his innocence. He can do so when he is told what the charges against him are. He can

do so by cross examining the witnesses produced against him. The object of supplying

statements is that the Govt. servant will be able to refer to the previous statements of

the witnesses proposed to be examined against the Govt. servant. Unless the statement

are given to the Govt. servant he will not be able to have an effective and useful cross-

examination. It is unjust and unfair to deny the Govt. servant copies of statements of

witnesses examined during investigation and produced at the inquiry in support of the

charges levelled against the Govt. servant. A synopsis does not satisfy the requirements

of giving the Govt. servant a reasonable opportunity of showing cause against the

action proposed to be taken.


Where the copies of statements of witnesses examined during the investigation

and ultimately produced at the enquiry in support of the charges levelled against him

were not supplied to the delinquent servant this lapse or refusal on the part of inquiry

officer has obviously resulted in prejudice to the delinquent servant as he had no

reasonable opportunity to effectively cross examine the witness. The order of removal

was held ab initio void and quashed. Shankar Gotiram Kale v. State of Maharashtra,

1979(2) SLR 496; Narayan Misra v. State of Orissa, 1982(2) SLR 506.

A preliminary inquiry had preceded the disciplinary inquiry and during the

preliminary inquiry statements of witnesses were recorded but copies of these

statements were not furnished to the respondent at the time of the disciplinary inquiry.

Even his request to inspect the file of preliminary inquiry was also rejected. The

respondent was denied reasonable opportunity to defend himself. Order of dismissal

held to be illegal, void and inoperative. State of U.P. v. Mohd. Sharif, AIR 1982 SC

937: 1982(2) SCC 376: 1982(1) SCJ 223: 1982 Lab IC 1234: 1982(2) SLR 265: 1982(2)

SLJ 259: 1982(45) FLR 289.

Also see notes 47 and 49.

107. Exhibiting of document during enquiry— The documents were taken on

file during the course of the enquiry and the delinquent perused everyone of them

before the conclusion of the enquiry. Copies were also furnished to him and as

requested by him he was given seven days” time for presenting his defence after the

receipt of copies of documents though under the rules only three days” time was

permitted. Instead of giving numbers to the exhibits as and when the documents were

taken on file, the Enquiry Officer would appear to have given serial numbers to the

exhibits at the conclusion of the enquiry. It was held that the adoption of such

procedure by the Enquiry Officer was not violative of the principles of natural justice.

Director General, Indian Council of Medical Research v. Anil Kumar Ghosh, 1998(3)

SCR 1034: 1998(7) SCC 97: AIR 1998 SC 2592: 1998(3) CLT 112(SC): 1998(5) SLR

659: 1999(1) SLJ 288: 1998(80) FLR 180: 1999(1) LLJ 1036: 1998 Lab IC 3096:

1998(4) LLN 96

Sub-rule (14) and (15)

108. Date and Place of Hearing be Informed to Delinquent — Delinquent

officer has a right to know the time and the place where evidence in support of charge-

sheet is to be recorded. Puran Chandra Das v. Chairman, State Transport Authority,

AIR 1970 Ori 1: 1970 Lab IC 47.

The petitioner attended the inquiry on 19th

March and it was adjourned to 26th

March. On 26th

March the petitioner did not appear and the inquiry was fixed for 12th

April, 18 witnesses were examined in petitioner”s absence. Petitioner applied for

rehearing but the Inquiry Officer refused to reopen the case. It is true that the Inquiry

Officer had no obligation to intimate every date of hearing, but it is one thing not to

inform and it is entirely a different thing to inform wrongly so as to mislead the

delinquent officer. Proceedings from 12th

April onward quashed. I.Ramesh Ao v. State

of Nagaland, 1982(1) SLJ 673 Gau.


The Inquiry Officer after submission of the reply by the employee not holding

any date of inquiry for straightaway submitting inquiry report. The issue involved could

not be decided without holding an inquiry. Held that inquiry is initiated being violative

of principles of natural justice. H.S. Mishra v. Secretary/General Manager Mau-Aima

Sahkari Katai Mills Ltd., 2002(3) SLR 709 All.

109. Language of inquiry— The proceedings of inquiry conducted in English

while employee was not conversant with English. No assistance of any advocate given

to worker. Inquiry rightly held to be vitiated on account of violation of principles of

natural justice. Voltas Ltd., Patancheru, Medak District v. Presiding Officer, Labour

Court-II, Hyderabad, 1999(5) SLR 699 AP (DB).

110. Enquiry Officer not to Record Evidence on Allegation Extraneous to

the Charge — The enquiry officer should not record evidence on allegations

extraneous to the charge as it will prejudice him against the delinquent. State of Assam

v. Mohan Chandra Kalita, 1972(II) SCWR 375: AIR 1972 SC 2535: 1973(1) SLR 401:

1972(4) SCC(N) 11; Narayan Misra v. State of Orissa, 1982(2) SLR 506.

111. Enquiry Officer, Role of — The enquiry officer is not the prosecutor in

the case. It is not his duty to somehow prove the charge. It is not for him to assume that

the delinquent officer is guilty and try to bring out admission from the delinquent

officer so that the charge against him may be proved. Such an approach would

apparently indicate bias on the part of the enquiry officer and so must be avoided.

When the enquiry officer forgets his role and instead of putting questions with a view to

elucidate answers for proper understanding of the facts before him and begins a

searching cross-examination, the object of which is apparently evidence, he ceases to be

an enquiry officer any more and his action is liable to be attacked successfully by the

other who is prejudiced by the consequently action. It has been noticed time and again

by the Courts that when the officer holding the enquiry takes a different role from that

of a person who is to adjudicate on the dispute impartially and without bias, he becomes

disqualified and it could no longer be said that the result of the enquiry is fair. S.

Krihanan Nair v. Divisional Superintendent, Southern Railway, 1973 SLJ 46: 1973(2)

SLR 353.

One of the principles of natural justice is that no person shall be a judge in his

own cause or the adjudicating authority must be impartial and must act without any

kind of bias. The said rule against bias has its origin from the maxim known as “Debet

esse Judex in Propria Causa”, which is based on the principle that justice not only be

done but should manifestly be seen to be done. This could be possible only when a

judge or an adjudicating authority decides the matter impartially and without carrying

any kind of bias. Bias may be of different kind and form. It may be pecuniary, personal

or there may be bias as to the subject-matter etc. See Financial Commer. (Taxation)

Punjab v. Harbhajan Singh, 1996(9) SCC 281 relied in Amar Nath Chowdhury v.

Braithwaite and Company Ltd., AIR 2002 SC 678: 2002(2) SCC 290: 2002(1) LLJ

1048: 2002(1) SCJ 268.

Cross-examination of defence witnesses by the enquiry officer is in violation of

the principles of natural justice and consequently and enquiry proceedings are vitiated.

Abdul Wajeed v. State of Karnataka, 1981(1) SLR 454.


112. Consideration of confession— It is true that a confession or admission of

guilt made by a person accused of an offence before, or while in the custody of, a

policy officer is not admissible in a court of law according to Sections 25 and 26 of the

Evidence Act but it is equally well settled that these rules of evidence do not apply to

departmental enquiries wherein the only test is compliance with the principles of

natural justice -and, of course, compliance with the rules governing the enquiries, if

any. In this context, it is well to remember that in India, evidence recovered or

discovered as a result of an illegal search is held relevant. In a departmental enquiry, it

would perhaps be permissible for the authorities to prove that the appellant did make

such a confession/admission during the course of interrogation and it would be for the

disciplinary authority to decide whether it is a voluntary confession/admission or not. If

the disciplinary authority comes to the conclusion that the statement was indeed

voluntary and true, he may well be entitled to act upon the said statement. Kuldip Singh

v. State of Punjab, AIR 1997 SC 79: 1996(10) SCC 659: 1996(3) SCJ 289: 1996(74)

FLR 2378: 1997(1) LLN 62: 1997(90) FJR 21: 1997(1) LLJ 131: 1996(6) SLR 714:

1997(1) UJ 110: 1997 Lab IC 147.

113. Witness, Summoning of for Examination or Discovery and Production

of Documents — The inquiring authorities have no statutory power to enforce the

attendance of any witness, and to examine him on oath. They cannot enforce the

discovery and production of any document nor they can requisition any public record

from any court or officer. They also cannot take any action for the disobedience of any

such process issued by them. To obviate this difficulty, the Parliament passed the

Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of

Documents) Act, (Act No. XVIII of 1972) empowering the Central Government to

authorise the inquiring authority while holding enquiry into allegation of lack of

integrity to exercise the power specified in Section 5 of the Act. The Act with short

comments has been placed in this book after the chapter on “Allied Service Matters”.

When a witnesses is examined in the course of a domestic enquiry, he need not

repeat everything that he has said in his earlier statement. It is enough if it is put to him

that he had made such statements; and if he admits those statements, those statements

will have to be treated as his examination-in-chief. Secretary, Central Board of Excise

& Customs v. K.S. Mahalingam, 1988(3) SLR 665, 686, 687, para 34 Mad (DB).

Where witnesses were sought to be summoned but their evidence was not

necessary for the facts of the case and hence was denied, it was held that it did not

violate principles of natural justice. Director General, Indian Council of Medical

Research v. Anil Kumar Ghosh, 1998(3) SCR 1034: 1998(7) SCC 97: AIR 1998 SC

2592: 1998(3) CLT 112(SC): 1998(5) SLR 659: 1999(1) SLJ 288: 1998(80) FLR 180:

1999(1) LLJ 1036: 1998 Lab IC 3096: 1998(4) LLN 96.

Examination of these two witnesses would have revealed as to whether the

complaint made by Virender Singh was correct or not and to establish that he was the

best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the

appellant to the hospital for medical examination, would have been an important

witness to prove the state or the condition of the appellant. Held that the Tribunal and

the High Court were not justified in thinking that non-examination of these two persons


could not be material. It was held further by Supreme Court that there was no proper

enquiry held by the authorities and on this ground the order of dismissal was quashed.

Hardwari Lal v. State of U.P., AIR 2000 SC 277: 1999(8) SCC 582: 2000(1) LLJ

495:1999(5) SLR 651: 2000 Lab IC 221: 2000(2) LLN 69: 2000(84) FLR 3.

114. Witnesses, Statement of: (i) - Charge-wise Disapproved — The

procedure of examining witnesses charges wise was disapproved. Union of India v.

Inder Nath, 1978(1) SLR 1.

A combined statement recorded of two witnesses is gravely prejudicial to the

defence of the delinquent and could gravely vitiate the inquiry. Chairman, Nimhans v.

G.N. Tumkur, 1988(6) SLR 25, 28 para 10 Kar (DB).

(ii) Be Recorded in Presence of Delinquent Officer — The statement of

witnesses in support of the charge should be recorded in the presence of the

Government servant. Union of India v. T.R. Verma, 1958 SCR 499 (507): AIR 1957 SC

882: 1957-58(13) FJR 237: 1958 SCJ 142: 1958(2) LLJ 259; State of M.P. v.

Chintaman Sadashiva Waishanppayam, AIR 1961 SC 1623; Shashi Bhushan Mohanty

v. State of Orissa, 1969 SLR 63; Amar Nath v. Commissioner, 1969 Cur LJ 484;

Ghirrao Srivastava v. State of U.P., 1975(1) SLR 323; 1975 Lab IC 1033; Narayana

Mishra v. State of Orissa, 1982(2) SLR 506.

115. Witnesses, Statement of, in Criminal Trial — Statements of witnesses

in criminal trial cannot be admitted in evidence and relied upon for establishing the

guilt unless the witnesses are produced and tendered for cross-examination. Union of

India v. Sardar Bahadur, 1972(2) SCR 218: 1972(4) SCC 618: 1972 Lab IC 627:

1972(1) LLJ 1: 1971(II) SCWR 712: 1972 SLR 355.

116. Witnesses, Statements of, in Preliminary Enquiry, Use of — Statements

of witnesses recorded during the preliminary enquiry as the back of the delinquent

Govt. Servant could not be read by the Inquiry Officer in formal enquiry. S.D.

Bhardawaj v. Union of India, 1982(2) SLJ 515 HP: 1983(1) SLR 32.

The order of dismissal was held vitiated as the findings have been based on

consideration of statement of the persons examined during the preliminary enquiry but

the power of employer to start a fresh proceeding cannot be taken away. Therefore, the

matter was disposed of with the observation that it will be open to the competent

authority to start a fresh disciplinary proceeding and conclude the same in accordance

with law. Union of India v. Mohammed Ibrahim, 2001(1) LLJ 1642.

The fact that the statements of the witnesses taken at the preliminary stage of

the enquiry were used at the time of the formal enquiry does not vitiate the enquiry if

those statements were made available to the delinquent officer and he was given

opportunity to cross-examine the witnesses in respect of those statements. State of

Mysore v. S.S. Makapur, 1963(2) SCR 943: AIR 1963 SC 375: 1964(1) LLJ 24; State of

U.P. v. Om Prakash Gupta, 1970 SCWR 139: AIR 1970 SC 679: 1969(3) SCC 775:

1969 SLR 890: 1970 Lab IC 658; M.G. Jayaram Naidu v. University of Mysore, 1975

Lab IC 128.


Consideration of statement of persons examined in preliminary enquiry to hold

the employee. It was held that the order of dismissal was vitiated as the findings have

been based on consideration of statement of the persons examined during the

preliminary enquiry but the power of employer to start a fresh proceeding cannot be

taken away. Therefore, liberty was granted to the competent authority to start a fresh

disciplinary proceeding and conclude the same in accordance with law. Union of India

v. Mohammed Ibrahim, 2001(1) LLJ 1642: 2001(3) SLT 466: 2001(4) Supreme 565.

Non-supply of copies of complaint which formed the basis of preliminary

inquiry and the charge sheet despite request of the employee. Held that non-supply of

documents caused prejudice resulting in failure to give reasonable opportunity of

hearing in the course of departmental inquiry and therefore, is violative of principles of

natural justice. Dharmender Kumar Sinha Yadav v. State of Bihar, 1999(5) SLR 311 Pat.

117. Witnesses, before police and statement u/s 161 Cr. P.C.— The

statements of witnesses recorded by police u/s 161 Cr.P.C. read over to the witnesses,

in the course of enquiry and the same were verified by them. The statement under

Section 161 Cr.P.C. may not be admissible in the criminal trial, but the said statements

can be produced in a disciplinary inquiry. Held that the earlier statement under Section

161 Cr.P.C. became a part of the examination-in-chief of the witness before the Inquiry

Officer, and full opportunity was granted to the respondent to cross-examine the said

witnesses. Held further that no illegality had been committed by taking on record the

statements which had been made under Section 161 Cr.P.C. State Bank of Bikaner and

Jaipur v. Srinath Gupta, AIR 1997 SC 243: 1996(6) SCC 486: 1996(89) FJR 783:

1996(74) FLR 2739: 1997(1) LLN 149: 1997(1) LLJ 677: 1997(1) SLJ 109: 1997 Lab

IC 151.

118. Witnesses, Mentioned in List, Right to Ask for Copies of Their

Statements — The civil servant has a right to ask for copies of statements of witnesses

mentioned in the list referred to in sub-section (3) of Rule 14 to deny copies of

statements recorded during preliminary enquiry would mean the denial of right to

defend himself by effective cross-examination by using the previous statements. Union

of India v. Ravi Dutt, 1973(1) SLR 1222 Delhi; State of Punjab v. Bhagat Ram, AIR

1974 SC 2335: 1975(2) SCR 370: 1975(1) SCC 155: 1975(1) SLR 2: 1975 SLJ 88: 1974

Lab IC 1442.

119. Witnesses and Documents Mentioned in the List, Production of — Provisions of Rule 14(15) be complied with. Union of India v. Inder Nath, 1978(1) SLR

1; Fateh Bhadur Singh v. Union of India, 1979(2) SLR 356: 1979 SLJ 607; S.D.

Bharadwaj v. Union of India, 1982(2) SLJ 515: 1983(1) SLR 32 HP; H.L. Sethi v.

Municipal Corporation of Simla, 1982(2) SLJ 694 HP: 1983 Lab IC 73.

120. Witnesses in Support of Charge, Failure to Examine Material Witness

— Failure to record evidence of witnesses in support of the charges, deprived the

delinquent officer of an opportunity of cross-examining those witnesses. Sheo Kumar

Tiwari v. Janapad Sobha, 1968 SLR 867 MP, Jagdish Prasad v. State of M.B., 1970

SLR 375 (1971) 1: 1970 SCJ 238; Antonio Rodrigues v. I.G.P., 1978(2) SLR 364;

Thotappalli Radhakrishna Murthy v. D.M., United India Insurance, 1982 Lab IC 1745.


121. Witnesses, Adjournment for Cross Examination — Adjournment for

cross examination refused. Principles of natural justice violated. Nripendra Nath v.

Chief Secretary, AIR 1961 Cal 1.

122. Witnesses, Cross-examination of - Date be Fixed — No date fixed for

the cross examination of witnesses by the delinquent. Order of dismissal cannot stand.

Banchchandihi Patnaik v. State of Orissa, AIR 1970 Ori 56; Narayan Misra v. State of

Orissa, 1982(2) SLR 506.

123. Witnesses, Opportunity be Given to Delinquent to Cross-examine — Rules of natural justice require that the delinquent must be given opportunity to cross-

examine witnesses produced against him. Sukhendra Chandra Das v. U.T. Tripura, AIR

1962 Tripura 15; State of Punjab v. Dewan Chunni Lal, AIR 1963 Punjab 503; Basant

Kumar Jain v. Union of India, 1969 DLT 599 (Delhi); Daljit Singh Sadhu Singh v.

Union of India, AIR 1970 Delhi 52; State of A.P. v. Mohammed Sarwar, 1971(1) SLR

507; Gajendra Singh v. State of Punjab, 1972 SLR 432; Ghirrao Lal Srivastava v. State

of U.P., 1974 SLJ 694: 1975(1) SLR 323: 1975 Lab IC 1033; V.K. Parameshwaram v.

Union of India, 1982 Lab IC 383: 1982(1) SLJ 516: 1981(3) SLR 164. Where such

opportunity was denied, the findings were set aside and matter was remanded for

enquiry from the stage of cross examination. S.C. Girotra v. United Commercial Bank

(UCO BANK), 1995 Supp (3) SCC 212: 1995(30) ATC 627: 1995(7) SLR 152: 1996(1)

LLJ 10: 1996(1) LLN 26.

Opportunity to cross-examine employer”s witnesses who appeared to support

the employer not afforded to the worker. No opportunity to the workman to lead his

defence. Even copy of the enquiry report not made available to the worker. Written

confessional statement of the worker not inspiring confidence. Departmental enquiry

without joining the worker cannot be termed as departmental enquiry. N.F.L. Employees

(Primary) Consumers Co-operative Store Ltd. v. Industrial Tribunal, Punjab, 2001(1)

SLR 469 P&H (DB).

124. Witnesses, Enquiry Officer as Witness — (I) Enquiry officer should not

rely on his own evidence. A man who is entrusted with the enquiry cannot both be a

judge and a witness. He cannot import his personal knowledge. Ashutosh Das v. State of

West Bengal, AIR 1956 Cal 278; Satya Prakash Varshney v. Union of India, 1980(3)

SLR 64.

(ii) Enquiry officer was examined as a witness on behalf of Union of India but

the Supreme Court found that in this case there was nothing to justify in holding that

the enquiry held by the enquiry officer was vitiated. Kshirode Behari Chakravatry v.

Union of India, 1970(1) SCWR 325: 1970 SLR 321.

125. Witnesses, Disciplinary Authority as Witness — Disciplinary authority

appeared as a witness against the civil servant. It shocks notions of judicial propriety

and fair play. There is violation of natural justice. State of U.P. v. Mohammad Nooh,

AIR 1958 SC 86: 1958 SCR 595: 1958 SCJ 242; Nand Kishore Jugal Kishore v.

Commissioner of Jabalpur, AIR 1962 MP 15.

126. Witnesses, Evidence of an Accomplice — An accomplice is a competent

witness. Union of India v. Triloki Nath, 1981(2) SLR 696. The evidence of an


accomplice is legal evidence, but the rule of caution requires that the Tribunal should

not act on that evidence unless it is corroborated or the Tribunal has, after cautioning

itself as to the danger of acting solely on accomplice”s evidence, decided after due

deliberation to accept it. C.J. John v. State of Kerala, 1979(1) SLR 479.

An accomplice is a competent witness — Union of India v. Triloki Nath, 1981

(2) SLR 696

In a departmental enquiry, the question, whether or not any delinquent officer

is co-accused with other does not arise. That would arise in a prosecution laid for

officer under the IPC or Prevention of Corruption Act. The evidence recorded in the

departmental enquiry stricto senso is not evidence as per the provisions of the Evidence

Act. Therefore, the statement of Palairam also formed part of the record which could be

taken into account in adjudging the misconduct against the appellant. Vijay Kumar

Nigam v. State of Madhya Pradesh, AIR 1997 SC 1358: 1996 Supp (8) SCR 544:

1996(11) SCC 599: 1997(1) SLR 17: 1997(1) CLT 263(SC): 1997(2) LLN 585:

1997(77) FLR 7: 1997(91) FJR 84.

127. Additional Evidence under Rule 14(15) — Under Rule 14(15), the

Inquiry Officer is expected to apply his mind to the evidence on record and thereafter

record an order that in his opinion it appeared to be necessary to take additional

evidence. After such an order the Inquiry Officer should allow the Presenting Officer to

produce such additional evidence. In such a case the Government servant is entitled to

an adjournment and to produce new evidence. Union of India v. Inder Nath, 1978(1)

SLR 1 Cal; S.D. Bhardawaj v. Union of India, 1982(2) SLJ 515 HP; H.L. Sethi v.

Municipal Corporation, Simla, 1982(2) SLJ 694 HP: 1983 Lab IC 73.

Where the delinquent applies to the Enquiry Officer to summon certain defence

witnesses (who happen to be serving under the Government in the same district) the

Enquiry Officer should summon them. It is unjustified for him, to leave it to the

delinquent applicant to produce the witnesses on his own responsibility. Refusal

amounts to denial of opportunity to adduce defence evidence. Shiv Dutta v. State of

Punjab, referred to as holding similarly in C. Burrows v. Union of India, 1990(2) SLR

232, 236, 237 para 7 (CAT Jabalpur).

Evidence on behalf of Disciplinary Authority was closed. Report was submitted

by the Inquiring Officer and case was remitted back, time and again. It was held that

additional evidence, cannot be permitted to fill up the gap in the evidence, on behalf of

the Disciplinary Authority, Bansi Ram, Commandant v. H.P. SSB Bn Shamshi, Kulu

District, 1988(4) SLR 55, 64 para 20 HP, (T.R. Handa, J.) (Discretion vested in the

Inquiry Officer was rule 14(5) to examine additional witness, can be exercised only

before the case of the disciplinary authority closed).

128. Witnesses, Examination After Delinquent Examined — Where in a case

the delinquent was examined prior to examination of prosecution witnesses, enquiry

quashed. Holding that this was a negation of the rules. S. Anthonyasani v. Government

of India, 1988(1) SLR 515 (CAT) (SN) (Mad).

Where the Inquiry Officer having received the statement of defence, admitted

fresh defence on behalf of the disciplinary authority, the action of the Inquiry Officer


could not be said to be procedurally ultra vires as he did have the jurisdiction to

entertain fresh evidence under clause (15). His doing so after having received the

statement of defence, may have been irregular but such irregularity, does not vitiate the

inquiry unless substantial prejudice is established to have been caused to the delinquent

Govt. servant. Fateh Bahadur Singh v. Union of India, 1979(2) SLR 357: 1979 SLJ 607 (All).

Sub-rule (16) and (17)

129. Sub-rule (16) can be Complied with when Delinquent Takes Part in

Proceedings — Sub-rule (16) requires the Govt. servant concerned to state his defence

orally or in writing when the case for the disciplinary authority is closed. Obviously

that provision can be complied with when the official against whom disciplinary

proceedings are being held takes part in the enquiry proceedings. When the delinquent

had chosen not to take part in the enquiry proceedings the question of his being

required to state his defence orally or in writing at that stage did not arise. Bhag Singh

Bedi v. Union of India, 1974(2) SLR 687; J.P. Srivastava v. Union of India, 1978 SLJ

500: 1978(2) SLR 311 and 450.

130. Defence When not Required — No evidence produced, oral or

documentary, to prove the charge. It is not necessary for the Govt. servant to produce

evidence. Ram Lal v. Union of India, AIR 1963 Rajasthan 57.

131. Delinquent cannot Claim a Particular Place for Hearing — Delinquent

officer cannot claim that enquiry be held at a particular place to enable him to produce

witnesses there. Lakshman Shastri v. State of Bihar, AIR 1967 Patna 160.

132. Defence Evidence: Opportunity for — Delinquent officer not given

opportunity to lead evidence. Enquiry cannot be said to comply with elementary

principles of natural justice. Enquiry vitiated. State of U.P. v. C.S.Sharma, 1967(II)

SCWR 648: 1967(3) SCR 843: AIR 1968 SC 158: 1969(1) LLJ 509: 1968 Lab IC 190:

1967 SLR 582; Kesho Rai v. State of Bihar, AIR 1967 Patna 184; Mohinder Singh v.

State of Punjab, 1968 Cur LJ 476. Where the delinquent expressly stated before the

enquiry officer that he did not desire to examine any witness or tender documentary

evidence, and did not content before disciplinary authority that the proceedings before

enquiry officer were unfair, it cannot be said that he was not given opportunity of

tendering his evidence. Kshirode Behari v. Union of India, 1970(1) SCWR 325: 1970

SLR 321. See also Jagdish Baliram v. M.N. Bhagat, 1990(6) SLR 604 Bombay; S.D.

Sharma v. Trade Fair Authority of India, 1985(1) SLR 670: 1985(1) SLJ 160 Delhi (DB).

The question whether the delinquent officer was given a reasonable opportunity

to lead evidence and to be heard or not is largely a question of fact. It is only when an

opportunity denied is of such a nature that the denial contravenes a mandatory

provisions of law or a rule of natural justice that it could vitiate the whole departmental

trial. R.C.Sharma v. Union of India, AIR 1976 SC 2037: 1976(2) SLR 265: 1976 SLJ

516; K.L.Shinde v. State of Mysore, 1976(3) SCR 913: AIR 1976 SC 1080: 1976(3)

SCC 76: 1976(2) SLR 102 & 260: 1976 SLJ 468: 1976 Lab IC 699: 1976(1) LLN 465.

133. Defence Evidence, Right of Delinquent Officer to Produce — It is true

that the oral enquiry which the enquiry officer is bound to hold can be regulated by him

in his discretion but if the charge-sheeted officer wants to lead oral evidence, the


enquiry officer cannot say that having regard to the charge against the officer, he would

not hold any oral enquiry. State of Bombay v. Narul Latif Khan, AIR 1966 SCC 269:

1965(3) SCR 135: 1966(2) SCJ 184: 1966(2) LLJ 595.

134. Defence Evidence, Right to Produce, Denied — Right of civil servant to

produce his witnesses is denied. The principal of natural justice is violated. The Court

has to look to what actual prejudice has been caused to a person by supposed denial to

him of a particular right. State of Bombay v. Narul Latif Khan, AIR 1966 SCC 269:

1965(3) SCR 135: 1966(2) SCJ 184: 1966(2) LLJ 595; C.S.Sharma, 1967(II) SCWR

648: 1967(3) SCR 843: AIR 1968 SC 158: 1967 SLR 582; Union of India v. T.R.Varma,

1958 SCR 499: AIR 1957 SC 882; State of M.P. v. Chintaman Sadashiva

Waishampayan, AIR 1961 SC 1623; Mohd. Yusuf Ali v. State of A.P., 1973(1) SLR 650;

Dola Gobinda Das v. Union of India, 1981(2) SLR 185.

In one case the charge-sheet was submitted upon the delinquent in January,

1983, on behalf of bank, list of documents to be relied upon by the bank was submitted

in the months of May and September, 1983, list of witnesses was produced on behalf of

the bank in the month of October, 1983, examination of witnesses on behalf of the bank

started in that very month, the delinquent went on taking time for cross-examination of

some of the witnesses examined on behalf of the bank who were ultimately cross-

examined on 20.3.1984, only after examination of witnesses on behalf of the bank was

completed, list of witnesses was filed by the defence for which the conducting officer

fixed 11.4.1984 and 12.4.1984 as dates for their examination, on 11.4.1984 neither the

defence representative appeared nor a single witness was produced on behalf of the

defence, rather a prayer was made for time upon which the case was adjourned to next

day i.e., 12.4.1984, on the adjourned dated, i.e., 12.4.1984 also neither any defence

representative appeared nor any witness was produced by the defence and the

conducting officer, therefore, had no option but to submit his report as in spite of full

opportunity afforded to the defence no witness was examined. In view of the aforesaid

facts, it was held that reasonable opportunity was afforded to the appellant to adduce

evidence during the course of enquiry. Deokinandan Sharma v. Union of India, 2001(1)

LLJ 1589: 2001(5) SCC 340: 2001(3) SLT 402: AIR 2001 SC 1767: 2001 Lab IC 1704

135. Defence Witnesses: Refusal to Summon and Examine — The Enquiry

Officer should not refuse to summon defence witnesses. He is, however, not bound to

examine all witnesses nominated by the delinquent. Before summoning witnesses, he

has to see that the witnesses are material. If he refuses to summon and examine the

witnesses, the question will arise whether he was justified to refuse to summon and

examine them. The guiding principle is whether the action of the enquiry officer

resulted in denial of a reasonable opportunity to the delinquent to defend himself and

showing cause against the charge and thus prejudice was caused to him whereby

principles of natural justice were violated. Janki Nath Sarangi v. State of Orissa,

1969(II) SCWR 278; State of Punjab v. Dewan Chuni Lal, 1970(1) SCWR 413: 1970

SLR 375: 1970(1) SCC 479: AIR 1970 SC 2086; Harmander Singh v. G.M., Northern

Rly., 1973 SLJ 569: 1973(1) SLR 846; Gajender Singh v. State of Punjab, 1972 SLR

432; Abdul Aziz Khan v. Union of India, 1973 SLJ 597: 1974(1) SLR 67; Inspecting

Assistant Commissioner v. Somendra Kumar, 1976(1) SLR 143: 1975 Lab IC 1647;

R.C. Sharma v. Union of India, AIR 1976 SC 2037: 1976 Supp SCR 580: 1976(3) SCC


574: 1976 Lab IC 1333: 1976(2) SLR 265: 1976 SLJ 516: ; Girwar v. Union of India,

1982(2) SLJ 56.

136. Defence Witnesses not Examined by Enquiry Officer as they were

Unwilling to Depose for Delinquent Officer — The witnesses whom the delinquent

officer wanted to examine were not examined at the enquiry as it was stated that they

expressed their unwillingness to depose in favour of the delinquent officer. No Enquiry

Officer can compel the presence of unwilling witnesses or to make them speak in

favour of the delinquent officer. J.Selvraj v. Union of India, 1981(3) SLR 20: 1981(2)

SLJ 413: 1982 Lab IC 450; S.D.Sharma v. Trade Fair Authority of India, 1985(1) SLR

670: 1985(1) SLJ 160 Delhi (DB).

137. Defence Witnesses, Cross-examination of, by Enquiry Officer — Cross-examination of defence witnesses by the enquiry officer was in violation of the

principles of natural justice and consequently the enquiry proceedings were vitiated.

Abdul Wajeed v. State of Karnataka, 1981(1) SLR 454.

138. Defence, When no Evidence to Support Charge — No evidence was

produced in support of charge. Defence of delinquent was taken. Finding could not be

given that the charge had been established. Municipal Committee, Rohtak v. Johri Mal

Mitter, 1970 Lab IC 1488: 1970 SLR 29.

139. Examination of Delinquent, Several Times — Where the delinquent

officer was examined, at the commencement of the enquiry and several times thereafter,

it was held that the enquiry was not fair. Ramshekal Yadav v. Chief Security Officer,

AIR 1967 MP 91.

140. Examination of Delinquent and his Witnesses Before Departmental Witnesses, Irregular — Examination of delinquent and his witnesses before

departmental witnesses is not only irregular but contrary to procedure of enquiry and

principles of natural justice. Union of India v. Reghubir Saran, 1982 Lab IC 1894.

141. Material on Record: Opportunity to Explain to be Given to

Delinquent — Rules of natural justice require that no material should be relied on

against a Govt. servant without being given an opportunity of explaining them. Union

of India v. T.R. Verma, AIR 1957 SC 882; State of Mysore v. K.Manche Gowda, AIR

1964 SC 506: 1964(4) SCR 540; Ghirrao Lal Srivastava v. State of U.P., 1974 SLJ 694:

1975(1) SLR 323: 1975 Lab IC 1033; Mangal Singh v. Commissioner, 1975(1) SLR

500; Prakash Chandra Suar v. State of Orissa, 1981(3) SLR 323. See also Raj Singh v.

State of Punjab, 1995(8) SLR 557 P&H; Dr Ravi Dutt Sharma v. State of Rajasthan,

1995(8) SLR 774 Raj; Himachal Dalpatram Nimbark v. Deputy Distt. Development

Officer, Amreli, 1997(2) SLR 538 Guj.

Non-supply of copies of relevant documents vitiates the inquiry. N.K.

Varadarajan v. Senior Deputy Director General, 1991(1) SLR CAT (Bangalore).

142. Material Collected and Relied Upon by Enquiry Officer Behind the

Back of Delinquent — If it is established that the material behind the back of the

delinquent officer has been collected during the enquiry and such material has been

relied upon by the enquiry officer, without its having been disclosed to the delinquent


officer, it can be stated that the inquiry proceedings are vitiated. State of M.P. v.

Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623; Rai Bahadur Singh v.

S.D.O., 1975 Lab IC 682.

143. Extraneous Matter, Collection and Placing of it on Record — It is

highly improper for an Enquiry Officer during the conduct of an enquiry to attempt to

collect any materials from outside sources and not make that information, so collected,

available to the delinquent officer and further make use of the same in enquiry

proceedings. State of Mysore v. S.S. Makapur, 1963(2) SCR 943: AIR 1963 SC 375;

State of Assam v. Mahendra Kumar Das, AIR 1970 SC 1255: 1971(1) SCR 87: 1970

SCC 709: 1970 Lab IC 1056: 1970 SLR 444; Amar Nath v. The Commissioner, 1969

Cur LJ 484; Raj Paul v. Administrator, Municipal Committee, 1970 Cur LJ 406: 1970

SLR 494; Rai Bahadur Singh v. S.D.O., 1975 Lab IC 682.

144. Enquiry Officer Relied Upon Material not Placed on Record During

Enquiry — Where the Enquiry Officer relied upon material which was not placed on

record during enquiry, it was held that the delinquent officer had not been given

reasonable opportunity of defending himself in the case and the order of dismissal was

set aside. Prakash Chandra Suar v. State of Orissa, 1981(3) SLR 323 (FB).

145. Statement not Recorded during Enquiry not to be Relied Upon —

Enquiry officer should not rely on the statement of a person whose statement had not

been recorded during the enquiry. Ram Shakal Yadav v. Chief Security Officer, AIR

1967 MP 91.

Sub-rule (18):

146. Failure to Generally Question Delinquent Officer Under Sub-rule (18) — Failure to comply with the requirement of sub-rule (18) does not vitiate the enquiry

unless the delinquent officer is able to establish prejudice. Rule 8(19) of All India

Service (Discipline and Appeal) Rules, 1969 and sub-rule (18) of Rule 14 of CCS

(CCA) Rules are almost similar. The decision therefore applies to sub-rule (18). Sunil

Kumar Banerjee v. State of West Bengal, 1980(2) SLR 147 (SC): AIR 1980 SC 1170:

1980(3) SCR 179: 1980(3) SCC 304: 1980 Lab IC 654: 1980(2) SCJ 327: 1980(40)

FLR 434.

Delinquent raised a question about procedural error in the inquiry by Enquiry

Officer, but did not take a particular stand. It was held that there was no illegality.

Secretary, Central Board of Excise and Customs, New Delhi v. K.S. Mahalingam,

1988(3) SLR 667 Mad (DB).

Question should refer to the evidence. Findings should not be based on the

answers. Satyapal Arora v. Director of Postal Services, 1990(2) SLJ 700 (CAT,

Jabalpur).

Extensive examination of the delinquent by the Enquiry Officer is deprecated.

Ram Shakial Yadav v. Chief Security Officer, AIR 1967 MP 91. The questions should

be inquisitorial. S.Krishnann Nair v. Divisional Superintendent, Southern Railway,

1973 Lab IC 591 (Ker): 1973 SLJ 46: 1973(2) SLR 353; Satyapal Arora v. Director of

Postal Services, 1990(2) SLJ 100 (CAT, Jabalpur).


Enquiry Officer”s failure to question the petitioner, as per the requirements of

Rule 14(18), CCS etc. does not affect the inquiry if there is no gross injustice and

prejudice to the petitioner. V. Gopalan v. Union of India, 1990(7) SLR 221, 224, para 7

(CAT, Ernakulam).

Sub-rule (19)

147. Supply of Copy of Written Brief to Government Servant, Necessary —

Rule 14(19) has left with the Enquiry Officer alternative course to be followed after the

closing of evidence for hearing the parties, that is, he may either hear the oral

arguments of Presiding Officer and the Government servant or alternatively permit

them to file written briefs of their respective cases if they would so desire. There is no

provision in the rule for supplying a copy of the written brief that may be filed by the

Presenting Officer to the Government servant. The question is whether non-supply of

copy of the written brief to the Government servant contravenes the rules of natural

justice. The question was decided by the Calcutta High Court in Collector of Customs v.

Mohd. Habibul Haque, 1973(1) SLR 321, and it was held that the requirements of rules

and principles of natural justice demand that the respondent should be served with a

copy of the written brief filed by the Presenting Officer even though service of such a

copy is not expressly provided in the rule. Failure to supply such a copy results in

denial of reasonable opportunity to the respondent to defend himself and thus renders

the entire disciplinary proceedings, invalid.

Sub-rule (20)

148. Ex parte Enquiry on Refusal of Service — (i) All that is required in

departmental enquiry is that a reasonable opportunity should be given and trying to

serve the Petitioner by Registered A.D. Post is more than reasonable. If the petitioner

chose to refuse service he must pay for the consequences. Ex parte enquiry valid.

Jadish Sekhri v. Union of India, 1970 SLR 571 Delhi; Union of India v. H.C. Sarin,

1967 DLT 567. See also Sri Ram Verma v. District Assistant Registrar, 1986(3) SLR 23

(DB). Termination of employee on the basis of enquiry in which the employee himself

chose not to participate was held valid and not assailable. Ranjan Kumar Mitra v.

Andrew Yule & Co. Ltd., 1997(10) SCC 386.

The post returned with endorsement “refused”. Held that it should be proved by

leading evidence as mere avoidance of service not sufficient to proceed ex-parte

enquiry. It should be proved that the avoidance was made deliberately and knowingly.

Ramesh Chander Tyagi v. Union of India, 1994(2) SCC 416: 1994(1) SLR 838:

1994(68) FLR 688: 1994(2) LLJ 192: 1994(27) ATC 112: 1994(2) LLN 748: 1996(1)

SLR 703.

149. Delinquent Officer did not Participate in Proceedings — Where the

delinquent officer at no time made any effort to participate in the proceedings, ex parte

proceedings are not vitiated. Sualal Yadav v. State of Rajasthan, 1977(1) SLR 681:

1977 SLJ 175.

Where the delinquent refused to participate in the disciplinary proceedings

without any valid reason, it was held that such employee cannot be permitted to

complain later on that he had been denied the reasonable opportunity of defending


himself and no violation of principles of natural justice can be alleged. Bank of India v.

Apurba Kumar Saha, 1994(2) SCC 615: 1994(1) SLR 260: 1994(3) SLJ 32: 1995(1) BC

13: 1994(2) LLN 56: 1995(2) LLJ 18.

Opportunity of participating in disciplinary inquiry not availed on the pretext

that criminal proceedings were going on against the delinquent. Held that the inquiry

proceeded ex-parte by the Inquiry Officer did not suffer from any procedural illegality.

State of Tamil Nadu v. M. Natarajan, AIR 1997 SC 3120: 1997(6) SCC 415: 1997(77)

FLR 23: 1997(4) LLN 50: 1998(1) LLJ 59: 1998(1) SLJ 7: 1997 Lab IC 2929.

150. Delinquent Failing to Appear for Non-payment of Subsistence

Allowance — Appellant was suspended and was called upon to appear before Enquiry

Officer. He made representation that unless, he was paid subsistence allowance he

would not be able to face the proceedings. Enquiry proceeded and he was dismissed.

Held, reasonable opportunity of defending himself in the enquiry was not provided.

Ghansyam Das Srivastava v. State of M.P., 1973(1) SCWR 391: AIR 1973 SC 1183:

1973(1) SCC 656: 1973(23) FLR 466: 1973(1) SLR 636: 1973 SLJ 356: See also

Bansidhar Panigrahi v. State of Orissa, 1975(2) SLR 725.

When the employee is placed under suspension, he is de-mobilised and the

salary is also paid to him at a reduced rate under the nick name of “Subsistence

Allowance”, so that the employee may sustain himself. Its denial is not proper. M. Paul

Anthony (Captain) v. Bharat Gold Mines Ltd., AIR 1999 SC 1416: 1999(3) SCC 679:

1999(2) JT 456: 1999(2) KLT 17(2): 1999(2) SLR 338 (SC): 1999 Lab IC 1565:

1999(2) LLN 640: 1999(82) FLR 627: 1999(95) FJR 1: 1999(2) SCJ 358: 1999(3) SLJ 152.

151. Delinquent Failing to Appear for Non-service with Any Notice — No

notice was available on the enquiry proceedings file or in the office of the respondents

proving that the petitioner had been duly served. Order regarding ex parte proceedings

against him was bad. H.L. Sethi v. Municipal Corporation, Simla, 1982(2) SLJ 694:

1983 Lab IC 73.

152. Sub-rule (11) be Complied with Even in ex parte Enquiry — Sub-rule

(11) cannot be given a go by even in an ex parte under sub-rule (20). Anil Kumar Das v.

Supdt. of Post Offices, AIR 1969 Assam 99. See also Sri Ram Verma v. District

Assistant Registrar, 1986(3) SLR 23 (DB).

Sub-rule (21)(a):

153. Disciplinary Proceedings Initiated by Authority Competent Only to

Inflict Minor Penalties — From sub-rule (21)(a) it is clear that an authority competent

to impose any of the minor penalties can himself inquire into the articles of charge or

cause it to be inquired into any other person appointed by him and in that case the order

awarding any of the major penalties, made by the authority competent to impose such

major penalty will not be deemed bad in law merely on the ground that the disciplinary

proceedings had been initiated by an authority competent only to inflict any of the

minor penalties. Director, Postal Service v. Oudh Behari Singh, 1980 SLJ 142. See also

State of Punjab v. Choudhary Manphul Singh, 1986(1) SLR 484 P&H.


Sub-rule (22):

154. Enquiry de nova on Change of Enquiry Officer — (I) A civil servant

cannot insist for de nova enquiry when there has been change of personnel of enquiry

officer because the findings of enquiry officer do not have a conclusive or binding

effect on the punishing authority. S. Harjit Singh v. I.G. Police, AIR 1963 Pun 90;

Deputy Inspector-General of Police v. P. Amualanathan, AIR 1966 Mad 203 (FB).

(ii) The successor enquiry officer can submit the enquiry report on the basis of

materials collected by his predecessors. Bauribandhu Misra v. I.G. Police, AIR 1970

Ori 213. See also Amal Kumar Roy v. Union of India, 1988(1) SLR 330 (CAT Cal); M.

Kolanadni Gounder v. Divisional Engineer, T.N.E.B., Thuraiyur, 1997(1) SLR 467

Mad.

155. Enquiry Committee: Change in Personnel — A change in personnel”s

of the Inquiry Committee after the proceedings are begun and some evidence recorded

cannot make any difference to the case of the civil servant. Report of Enquiry

Committee not vitiated. No violation of any principles of natural justice. General

Manager, E.Rly v. Jawala Prasad Singh, AIR 1970 SC 1095: 1970(3) SCR 271:

1970(1) SCC 103: 1970 SLR 25: 1970 Lab IC 866: 1970(2) LLJ 279: 1970(20) FLR 84:

1971(1) SCJ 439.

Sub-rule (23):

156. Proof Required in Departmental Proceedings — (I) The rule followed

in criminal trials that an offence is not established unless proved by evidence beyond

reasonable doubt to the satisfaction of the Court, is not applicable to departmental

proceedings. State of A.P. v. S.Sree Rama Rao, AIR 1963 SC 1723: 1964(3) SCR 25:

1964(2) SCJ 300: 1966(13) FLR 104: 1964(1) LLJ 1; Sanat Kr. Banerjee v. Collector,

1970 Lab IC 1641 (Cal); Sat Prakash Manchanda v. Union of India, 1975 SLJ 101;

K.L. Shinde v. State of Mysore, AIR 1976 SC 1080: 1976(3) SCR 913: 1976(3) SCC 76:

1976 SLJ 468: 1976(2) SLR 102 & 260: 1976 Lab IC 699: 1976(1) LLJ 465.

(ii) The standard of proof required is that of preponderance of probability and

is not proof beyond reasonable doubt. Union of India v. Sardar Bahadur, 1971(II)

SCWR 712: 1972 SLR 355; Standard of proof in a criminal case and departmental

enquiry is different. Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh, 1994 Supp (3)

SCC 628: 1994(5) SLR 534: 1994(28) ATC 594: 1994(69) FLR 1078: 1995(2) LLJ 633:

1996(2) LLN 451. The inquiry proceedings should not be examined by the court as if it

was hearing an appeal in criminal case. Union of India v. A. Nagamalleshwar Rao, AIR

1998 SC 111: 1998(1) SCC 700: 1998(78) FLR 68: 1998(1) SLR 18: 1998 Lab IC 389:

1998(1) LLN 361. See also Union of India v. B.K. Srivastava, 1998(6) SCC 340: AIR

1998 SC 300: 1997(77) FLR 786: 1998(1) LLJ 431: 1998(1) LLN 340.

(iii) Though the proof beyond reasonable doubt should not be insisted upon still

the proof should be capable of scrutiny and should stand test of reasonableness

consistent with human conduct and probabilities. The findings should be supported by

legal evidence. K. Sundora Rajan v. D.I.G. Police, Tiruchirapalli, 1973 SLJ 100: 1972

SLR 723.


(iv) It may be that in disciplinary proceedings, the technicalities of criminal

law cannot be invoked, and the strict mode of proof prescribed by the Evidence Act

may not be applied with equal rigour, but the charge framed against the public servant

must be held to be proved before any punishment can be imposed on him. State of

Madras v. A.R. Srinivasan, 1966(II) SCWR 524: AIR 1966 SC 1827: 1967(15) FLR

104: 1967(1) SCJ 855.

157. Findings of Enquiry Officer should be Clear and Definite — (I) The

mind of the Enquiry Officer and the Disciplinary Authority should be applied with

scrupulous regard to the material on the record and that it should be followed by a clear

and definite finding. A weak and inconclusive finding cannot serve in law as the basis

for taking action against the delinquent official. Gian Singh v. State of H.P., 1974(2)

SLR 226: 1975 Lab IC 73.

(ii) Enquiry Officer recorded a hesitating finding supporting the defence plea.

Held, a departmental action is not a criminal charge and therefore courts have taken the

view that doctrine of benefit of doubt has no application. On the evidence, as a fact

conclusion on the point should have been reached. Paramananda Mishra v.

Comptroller and Auditor General of India, 1974(2) SLR 487: 1975 Lab IC 838. See

also Kalidas Biswas v. Union of India, 1990(6) SLR 413 (CAT Cal); Kapileshwar

Paswan v. G.M., North Eastern Railway, 1989(5) SLR 799 (CAT Patna).

158. Findings of Enquiry Officer, Recommendations as to Punishment — The Enquiry Officer need not make any recommendations as to the punishment which

may be imposed on the delinquent officer unless the statutory rules or the specific order

under which an officer is appointed to hold an enquiry so requires. If the Enquiry

officer has made any recommendations that a particular penalty or punishment should

be imposed, the Delinquent Officer should be informed about the recommendations.

State of Gujarat v. R.G. Teredesai, 1970(1) SCR 251: AIR 1969 SC 1294: 1969(2) SCC

128: 1969(2) SCJ 740: 1969 SLR 519: 1969 Lab IC 1547; Rai Bahadur Singh v. S.D.O.,

1975 Lab IC 682.

159. Findings of Enquiry Officer should be Based on Some Evidence — The

minimum requirement of the rules of natural justice is that the tribunal should arrive at

its conclusion on the basis of some evidence, i.e. evidential material which with some

degree of definiteness points to the guilt of the delinquent in respect of the charge

against him. Suspicion cannot be allowed to take the place of proof in such inquiries.

Nand Kishore Prasad v. State of Bihar, AIR 1978 SC 1277: 1978(3) SCR 708: 1978(3)

SCC 366: 1978 SLR 46: 1978 SLJ 591: 1978 Lab IC 1106: 1978(2) LLJ 84: 1978 SLJ

591: 1978(2) LLN 278.

Where there was no evidence to support the charges the penalty imposed was

quashed. Prakash Chandra Suar v. State of Orissa, 1981(3) SLR 323.

160. Supply of copy of Enquiry report— Copy of report of Enquiry Officer

must be supplied by disciplinary authority before inflicting penalty. Failure to supply

the same is violation of rules of natural justice. Penalty of premature retirement

inflicted as a result of disciplinary proceedings is illegal. J.C.Mehta v. Sptdg. Engr.,


P.G.I., Chandigarh v. Post Graduate Institute of Medical Education and Research,

Chandigarh, 1988(4) SLR 768 P&H.

Non-supply of the inquiry report to the delinquent amounts to violation of

natural justice. Sudhanshu Sekhar Routh v. Union of India, 1989(1) SLR 502 Cal

(Paritosh Kumar Mukherji, J.). If the procedure for major penalty is initiated under Rule

15 CCS Rules and whole procedure (inquiry and report) is undergone then all the

requirements of Rule 15 must be complied with even if ultimately minor penalty is

imposed. Hence copy of the inquiry report must be supplied to the delinquent. Md.

Athar Akbar v. State of Orissa, 1990(2) SLR 244 (Orissa At, Bhubaneshwar). For

dropping of departmental enquiry see Bhagat Singh v. Union of India, 1994(7) SLR 743

(CAT Calcutta).

Supreme Court in State of Gujarat v. R. G. Teredesai, (1970) 1 SCR 251 : AIR

1969 SC 1294 has indicated that the Inquiry Officer was under no obligation or duty to

make any recommendations in the matter of punishment to be imposed on the

government servant against whom departmental inquiry is held and his function merely

is to conduct the inquiry in accordance with law and to submit the record along with the

findings or conclusions on the delinquent servant. But if the Inquiry Officer has also

made recommendations in the matter of punishment, that is likely to affect the mind of

the punishing authority with regard to penalty or punishment to be imposed on such

officer which must be disclosed to the delinquent officer. Since such recommendation

forms part of the record and constitutes appropriate material for consideration of the

Government, it would be essential that that material should not be withheld from him so

that he could while showing cause against the proposed punishment make a proper

representation. The entire object of supplying a copy of the report of the Inquiry Officer

is to enable the delinquent officer to satisfy the punishing authority that he is innocent

of the charges framed against him and that even if the charges are held to have been

proved the punishment proposed to be inflicted is unduly severe. (at p. 254 of SCR and

at p. 1296 of AIR) of the Reports Grover, J. speaking for this Court stated:

“The requirement of a reasonable opportunity, therefore, would

not be satisfied unless the entire report of the Inquiry Officer

including his views in the matter of punishment are disclosed to

the delinquent servant.”

In Uttar Pradesh Government v. Sabir Hussain, (1975) Suppl. SCR 354: AIR

1975 SC 2045, Supreme Court held that the High Court was right in holding that the

delinquent was not given a reasonable opportunity to show cause against the action

proposed to be taken against him and that the non-supply of the copies of the material

documents had caused serious prejudice to him in making a proper representation.

Thereafter a question arose that as to whether the Forty-Second Amendment

has brought about any change in the position in the matter of supply of a copy of the

report and the effect of non-supply thereof on the punishment imposed. Replying in

negative the Supreme Court observed:

“With the Forty-Second, Amendment, the delinquent officer is not associated

with the disciplinary inquiry beyond the recording of evidence and the submissions


made on the basis of the material to assist the Inquiry Officer to come to his

conclusions. In case his conclusions are kept away from the delinquent officer and the

Inquiry Officer submits his conclusions with or without recommendation as to

punishment, the delinquent is precluded from knowing the contents thereof although

such material is used against him by the disciplinary authority. The report is an adverse

material if the Inquiry Officer records a finding of guilt and proposes a punishment so

far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being

deprived of knowledge of the material against him though the same is made available to

the punishing authority in the matter of reaching his conclusion, rules of natural justice

would be affected. Prof. Wade has pointed out:

“The concept of natural justice has existed for many centuries and

it has crystallised into two rules: that no man should be judge in

his own cause; and that no man should suffer without first being

given a fair hearing. They (the Courts) have been developing and

extending the principles of natural justice so as to build up a kind

of code of fair administrative procedure to be obeyed by

authorities of all kinds. They have done this once again, by

assuming that Parliament always intends powers to be exercised

fairly.”

Deletion of the second opportunity from the scheme of Art. 311(2) of the

Constitution has nothing to do with providing of a copy of the report to the delinquent

in the matter of making his representation. Even though the second stage of the inquiry

in Art. 311(2) has been abolished by amendment, the delinquent is still entitled to

represent against the conclusion of the inquiry Officer holding that the charges or some

of the charges are established and holding the delinquent guilty of such charges. For

doing away with the effect of the enquiry report or to meet the recommendations of the

Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the

report becomes necessary and to have the proceeding completed by using some material

behind the back of the delinquent is a position not countenanced by fair procedure.

While by law application of natural justice could be totally ruled out or truncated,

nothing has been done here which could be taken as keeping natural justice out of the

proceedings and the series of pronouncements of this Court making rules of natural

justice applicable to such an inquiry are not affected by the 42nd amendment. It was

therefore held that supply of a copy of the inquiry report along with recommendations,

if any, in the matter of proposed punishment to be inflicted would be within the rules of

natural justice and the delinquent would, therefore, be entitled to the supply of a copy

thereof. The Forty-Second Amendment has not brought about any change in this

position.” Union of India v. Ramzan Khan (Mohd), 1990 Supp (3) SCR 248: AIR 1991

SC 471: 1991(1) SCC 588: 1990(4) JT 456: 1991(78) FJR 207: 1991(1) ATR 120:

1991(16) ATC 505: 1991(1) LLN 380: 1990(61) FLR 736: 1991(1) SLR 159: 1991 Lab

IC 308: 1991(1) LLJ 29: 1991(1) SLJ 196.

Another argument advanced on the basis of Art. 14 of the Constitution, namely,

that in one set of cases arising out of disciplinary proceedings furnishing of the copy of

the inquiry report would be insisted upon while in the other it would not be, was held to

have no foundation inasmuch as where the disciplinary authority is the Inquiry Officer


there is no report. He becomes the first assessing authority to consider the evidence

directly for finding out whether the delinquent is guilty and liable to be punished. Even

otherwise, the inquiries which are directly handled by the disciplinary authority and

those which are allowed to be handled by the Inquiry Officer can easily be classified

into two separate groups - one, where there is no inquiry report on account of the fact

that the disciplinary authority is the Inquiry Officer and inquiries where there is a report

on account of the fact that an officer other than the disciplinary authority has been

constituted as the Inquiry Officer. That itself would be a reasonable classification

keeping away the application of Art. 14 of the Constitution. Union of India v. Ramzan

Khan (Mohd) (supra).

Thereafter this question was again considered by a Constitution Bench of the

Supreme Court consisting of M. N. Venkatachaliah, C.J.I., P.B. Sawant, K.

Ramaswamy, S. Mohan and B. P. Jeevan Reddy, JJ. in Managing Director, ECIL,

Hyderabad, v. B. Karunakar, 1993 Supp(2) SCR 576: 1993(4) SCC 727: 1994(6) JT 1:

AIR 1994 SC 1074: 1993(3) SLJ 193: 1993(25) ATC 704: 1994(84) FJR 210: 1993(5)

SLR 532: 1993(67) FLR 1230: 1994(1) LLJ 162: 1994 Lab IC 762: 1994(2) LLN 9 The

majority judgement was delivered by Sawant J. for M. N. Venkatachaliah, C. J. I., for

himself, S. Mohan and B. P. Jeevan Reddy, JJ. His lordship formulated the following

questions for consideration by the Constitution Bench:

“The basic question of law which arises in these matters is whether the report

of the Inquiry Officer/authority who/which is appointed by the disciplinary authority to

hold an inquiry into the charges against the delinquent employee is required to be

furnished to the employee to enable him to make proper representation to the

disciplinary authority before such authority arrives at its own finding with regard to the

guilt or otherwise of the employee and the punishment, if any, to be awarded to him.

This question in turn gives rise to the following incidental questions:

(i) Whether the report should be furnished to the employee even

when the statutory rules laying down the procedure for holding the

disciplinary inquiry are silent on the subject or are against it?

(ii) Whether the report of the Inquiry Officer is required to be

furnished to the delinquent employee even when the punishment

imposed is other than the major punishment of dismissal, removal

or reduction in rank?

(iii) Whether the obligation to furnish the report is only when the

employee asks for the same or whether it exists even otherwise?

(iv) Whether the law laid down in Mohd. Ramzan Khan”s case (AIR

1991 SC 471) (supra) will apply to all establishments-

Government and non-Government, public and private sector

undertakings?

(v) What is the effect of the non-furnishing of the report on the order

of punishment and what relief should be granted to the employee

in such cases?


(vi) From what date the law requiring furnishing of the report should

come into operation?

(vii)Since the decision in Ramzan Khan”s case (AIR 1991 SC 471)

(supra) has made the law laid down there prospective in operation,

i.e., applicable to the orders of punishment passed after 20th

November, 1990 on which day the said decision was delivered,

this question in turn also raises another question, viz., what was

the law prevailing prior to 20th November, 1990?

After a detailed consideration various earlier decision on the subject and

evolution of law on the subject, in respect of requirement of principles of natural justice

it was held “Article 311(2) says that the employee shall be given a “reasonable

opportunity of being heard in respect of the charges against him”. The findings on the

charges given by a third person like the enquiry Officer, particularly when they are not

borne out by the evidence or are arrived at by overlooking the evidence or

misconstruing it, could themselves constitute new unwarranted imputations. What is

further, when the proviso to the said Article states that “where it is proposed after such

inquiry to impose upon him any such penalty such penalty may be imposed on the basis

of the evidence adduced during such inquiry and it shall not be necessary to give such

person any opportunity of making representation on the penalty proposed”, it in effect

accepts two successive stages of differing scope. Since the penalty is to be proposed

after the inquiry, which inquiry in effect is to be carried out by the disciplinary

authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and

to assist him), the employee”s reply to the Inquiry Officer”s report and consideration

of such reply by the disciplinary authority also constitute an integral part of such

inquiry. The second stage follows the inquiry so carried out and it consists of the

issuance of the notice to show cause against the proposed penalty and of considering

the reply to the notice and deciding upon the penalty. What is dispensed with is the

opportunity of making representation on the penalty proposed and not of opportunity of

making representation on the report of the Inquiry Officer. The latter right was always

there. But before the 42nd Amendment of the Constitution, the point of time at which it

was to be exercised had stood deferred till the second stage viz., the stage of

considering the penalty. Till that time, the conclusions that the disciplinary authority

might have arrived at both with regard to the guilt of the employee and the penalty to be

imposed were only tentative. All that has happened after the 42nd Amendment of the

Constitution is to advance the point of time at which the representation of the employee

against the enquiry Officer”s report would be considered. Now, the disciplinary

authority has to consider the representation of the employee against the report before it

arrives at its conclusion with regard to his guilt or innocence of the charges. … …

Hence it has to be held that when the Inquiry Officer is not the disciplinary authority,

the delinquent employee has right to receive a copy of the inquiry Officer”s report

before the disciplinary authority arrives at its conclusions with regard to the guilt or

innocence of the employee with regard to the charges levelled against him. That right is

a part of the employee”s right to defend himself against the charges levelled against

him. A denial of the Inquiry Officer”s report before the disciplinary authority takes its


decision on the charges is a denial of reasonable opportunity to the employee to prove

his innocence and is a breach of the principles of natural justice.”

In regard to the questions formulated above, it answered as under:

(i) Since the denial of the report of the Inquiry Officer is a denial of reasonable

opportunity and a breach of the principles of natural justice, it follows that the statutory

rules, if any, which deny the report to the employee are against the principles of natural

justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a

copy of the report even if the statutory rules do not permit the furnishing of the report

or are silent on the subject.

(ii) The Article 311, however, cannot be construed to mean that it prevents or

prohibits the inquiry when punishment other than that of dismissal, removal or

reduction in rank is awarded. The procedure to be followed in awarding other

punishments is laid down in the service rules governing the employee. What is further,

Article 311(2) applies only to members of the civil services of the Union or an all India

service or a civil service of a State or to the holders of the civil posts under the Union

or a State. In the matter of all punishments both Government servants and others are

governed by their service rules. Whenever, therefore, the service rules contemplate an

inquiry before a punishment is awarded, and when the Inquiry Officer is not the

disciplinary authority the delinquent employee will have the right to receive the Inquiry

Officer”s report notwithstanding the nature of the punishment.

(iii) Since it is the right of the employee to, have the report to defend himself

effectively, and he would not know in advance whether the report is in his favour or

against him, it will not be proper to construe his failure to ask for the report, as the

waiver of his right. Whether, therefore, the employee asks for the, report or not, the

report has to be furnished to him.

(iv) In the view that we have taken, viz., that the right to make representation

to the disciplinary authority against the findings recorded in the inquiry report is an

integral part of the opportunity of defence against the charges and is a breach of

principles of natural justice to deny the said right, it is only appropriate that the law laid

down in Mohd. Ramzan Khan”s case (AIR 1991 SC 471) should apply to employees in

all establishments whether Government or non-Government, public or private. This will

be the case whether there are rules governing the disciplinary proceeding or not and

whether they expressly prohibit the furnishing of the copy of the report or are silent on

the subject. Whatever the nature of punishment, further, whenever the rules require an

inquiry to be held, for inflicting the punishment in question, the delinquent employee

should have the benefit of the report of the Inquiry Officer before the disciplinary

authority records its findings on the charges levelled against him. Hence question (iv) is

answered accordingly.

(v) The next question to be answered is what is the effect on the order of

punishment when the report of the Inquiry Officer is not furnished to the employee and

what relief should be granted to him in such cases. The answer to this question has to be

relative to the punishment awarded. When the employee is dismissed or removed from

service and the inquiry is set aside because the report is not furnished to him, in some


cases the non-furnishing of the report may have prejudiced him gravely while in other

cases it may have made no difference to the ultimate punishment awarded to him.

Hence to direct reinstatement of the employee with back-wages in all cases is to reduce

the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the

principles of natural justice have been evolved to uphold the rule of law and to assist

the individual to vindicate his just rights. They are not incantations to be invoked nor

rites to be performed on all and sundry occasions. Whether in fact, prejudice has been

caused to the employee or not on account of the denial to him of the report, has to be

considered on the facts and circumstances of each case. Where, therefore, even after the

furnishing of the report, no different consequence would have followed, it would be a

perversion of justice to permit the employee to resume duty and to get all the

consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to

stretching the concept of justice to illogical and exasperating limits. It amounts to a

“unnatural expansion of natural justice” which in itself is antithetical to justice. ….

Hence, in all cases where the Inquiry Officer”s report is not furnished to the delinquent

employee in the disciplinary proceedings, the courts and Tribunals should cause the

copy of the report to be furnished to the aggrieved employee if he has not already

secured it before coming to the Court Tribunal, and give the employee an opportunity to

show how his or her case was prejudiced because of the non-supply of the report. If

after hearing the parties, the Court, Tribunal comes to the conclusion that the non-

supply of the report would have made no difference to the ultimate findings and the

punishment given, the Court/Tribunal should not interfere with the order of punishment.

The Court/Tribunal should not mechanically set aside the order of punishment on the

ground that the report was not furnished as is regrettably being done at present. The

courts should avoid resorting to short-cuts. Since it is the Courts/ Tribunals which will

apply their judicial mind to the question and give their reasons for setting aside or not

setting aside the order of punishment, (and not any internal appellate or revisional

authority), there would be neither a breach of the principles of natural justice nor a

denial of the reasonable opportunity. It is only if the Courts/ Tribunals find that the

furnishing of the report would have made a difference to the result in the case that

should set aside the order of punishment. Where after following the above procedure

the Courts/Tribunals sets aside the order of punishment, the proper relief that should be

granted is to direct reinstatement of the employee with liberty to the authority,

management to proceed with the inquiry, by placing the employee under suspension and

continuing the inquiry from the stage of furnishing him with the report. The question

whether the employee would be entitled to the back-wages and other benefits from the

date of his dismissal to the date of his reinstatement if ultimately ordered should

invariably be left to be decided by the authority concerned according to law, after the

culmination of the proceedings and depending on the final outcome. If the employee

succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at

liberty to decide according to law how it will treat the period from the date of dismissal

till the reinstatement and to what benefits, if any and the extent of the benefits, he will

be entitled. The reinstatement made as a result of the setting aside of the inquiry for

failure to furnish the report should be treated as a reinstatement for the purpose of

holding the fresh inquiry from the stage of furnishing the report and no more, where

such fresh inquiry is held. That will also be the correct position in law.


(vi) & (vii) It is for the first time in Mohd. Ramzan Khan”s case (supra) that

this court laid down the law. That decision made the law, laid down there prospective in

operation, i.e., applicable to the orders of punishment passed after 20th November,

1990. The law laid down was not applicable to the orders of punishment passed before

that date notwithstanding the fact that the proceedings arising out of the same were

pending in courts after that date. The said proceedings had to be decided according to

the law prevalent prior to the said date which did not require the authority to supply a

copy of the Inquiry Officer”s report to the employee. The only exception to this was

where the service rules with regard to the disciplinary proceedings themselves made it

obligatory to supply a copy of the report to the employee.

The above answers to seven questions extracted above cover the all aspects of

supply and non supply of enquiry report. Accordingly an order passed in a disciplinary

proceeding cannot ipso facto be quashed merely because a copy of the enquiry report

has not been furnished to the delinquent officer, but he is obliged to show that by non-

furnishing of such a report he has been prejudiced, would apply even to cases where

there is requirement of furnishing copy of enquiry report under the statutory provisions

and/or services rules. State of Uttar Pradesh v. Harendra Arora, 2001(3) SCR 375: AIR

2001 SC 2319: 2001(6) SCC 392: 2001(4) SLR 558: 2001 Lab IC 1805: 2002(3) LLJ 1124.

In cases of non-supply of Enquiry report to delinquent after this decision, it

was accordingly held that the judgment of Supreme Court in Ramzan Khan”s case

being prospective in operation, the delinquent not entitled to its benefit. Inspecting

Assistant Commissioner, Bombay v. Sharat Narayan Parab, 1998(1) SCC 484:

1998(78) FLR 79: 1998(1) SLR 8: 1998(2) LLJ 653 See also Union of India v. B.K.

Srivastava, 1998(6) SCC 340: AIR 1998 SC 300: 1997(77) FLR 786: 1998(1) LLJ 431:

1998(1) LLN 340; State of Karnataka v. V. B. Hiregowdar, AIR 1997 SC 9: 1996(10)

SCC 505: 1996(4) SLR 704: 1996(6) AD(SC) 45: 1996 Lab IC 2748: 1997(1) SLJ 47:

1997(2) LLJ 921: 1998(78) FLR 527; State of Uttar Pradesh v. Abhai Kishore Masta,

1995(1) SCC 336: 1994(7) JT 748: 1995(1) SCJ 199: 1995(1) SLR 16: 1995(29) ATC

116: 1995(2) SLJ 1: 1995 Lab IC 1401: 1995(70) FLR 789; Divisional Commercial

Superintendent v. K. Nagarajan, 1994(27) ATC 445: 1995 Supp (4) SCC 420.


ACTION ON THE INQUIRY REPORT R. 15

15. Action on the Inquiry report:— (1) The disciplinary

authority, if it is not itself the inquiry authority may, for reasons to be

recorded by it in writing, remit the case to the inquiring authority for

further inquiry and report and the inquiry authority shall thereupon

proceed to hold the further inquiry according to the provisions of Rule

14, as far as maybe.

1[(2) The disciplinary authority shall forward or cause to be

forwarded a copy of the report of the inquiry, if any, held by the

disciplinary authority or where the disciplinary authority is not the

inquiring authority, a copy of the report of the inquiring authority

together with its own tentative reasons for disagreement, if any, with the

findings of inquiry authority on any article of charge to the Government

servant who shall be required to submit, if he so desires, his written

representation or submission to the disciplinary authority within fifteen

days, irrespective of whether the report is favourable or not to the

Government servant.

(2A) The disciplinary authority shall consider the representation, if

any, submitted by the Government servant before proceeding further in

the matter specified in sub-rules (3) & (4).

(3) If the disciplinary authority having regard to its findings on all

or any of the articles of charge is of the opinion that any of the penalties

specified in clauses (i) to (iv) of Rule 11 should be imposed on the

Government servant, it shall notwithstanding anything contained in Rule

16, make an order imposing such penalty:

Provided that in every case where it is necessary to consult the

Commission, the record of the inquiry shall be forwarded by the

disciplinary authority to the Commission for its advice and such advice

shall be taken into consideration before making any order imposing any

penalty on the Government servant.

(4) If the disciplinary authority having regard to its findings on all

or any of the articles of charge and on the basis of the evidence adduced

1 Sub-rules(1-A), (1-B) and (2) substituted by Rules (2) and (2-A) vide Notification

No.11012/20/1998 Estt. (A), dated 21.08.2000 and published in the Gazette of India by GSR No.337 dated 02.09.2000.


during the inquiry, is of the opinion that any of the penalties specified in

clauses (v) to (ix) of Rule 11 should be imposed on the Government

servant, it shall make an order imposing such penalty and it shall not be

necessary to give the Government servant any opportunity of making

representation on the penalty proposed to be imposed:

Provided that in every case where it is necessary to consult the

Commission, the record of the inquiry shall be forwarded by the

disciplinary authority to the Commission for its advice and such advice

shall be taken into consideration before making an order imposing any

such penalty on the Government servant.

COMMENTARY

S Y N O P S I S

Sub-rule (1)

1. Enquiry officer and disciplinary authority: Generally .................................................... 377

2. Power to remit case for further enquiry. ......................................................................... 377

3. De nova enquiry ............................................................................................................. 378

Sub-rules (2), (3) and (4)

4. Disagreement with Enquiry Officer ............................................................................... 379

5. Disciplinary authority to give its reasons of disagreement ............................................. 379

6. Natural Justice ................................................................................................................ 380

7. Disagreement with Enquiry Officer or Committee, when High Court to interfere ......... 381

8. Bias of punishing authority ............................................................................................ 382

9. Enquiry Officer acting as Disciplinary Authority........................................................... 382

10. Disciplinary Authority is not bound by findings of Enquiry Officer .............................. 383

11. Disciplinary Authority to apply mind ............................................................................. 384

12. Dismissal in default ........................................................................................................ 385

13. Disciplinary Authority Whether to give reasons for accepting the findings of enquiry

officer ............................................................................................................................. 385

14. Quasi-judicial authorities should indicate reasons.......................................................... 386

15. Disciplinary Authority: Power to interfere with other enquiries .................................... 386

16. Order of disciplinary authority to show what charges had been established .................. 387

17. Order should be a speaking order ................................................................................... 387

18. Extraneous matters not be considered ............................................................................ 388

19. Suspicion, no substitute for proof ................................................................................... 389

20. High Court not to review materials in a writ, if enquiry properly held .......................... 389

21. High Court whether to appraise evidence in writ ........................................................... 390


22. Challenge to Departmental proceedings by Public Interest Litigation ........................... 391

23. Minor irregularity in conducting enquiry does not vitiate a correct finding ................... 392

24. Public Service Commission - Advice of......................................................................... 392

25. Public Service Commission, consultation with .............................................................. 392

26. Commission”s recommendations or advice, non-supply of, to delinquent officer for his

comments ....................................................................................................................... 392

27. Disciplinary authority obtained the views of Vigilance Commissioner ......................... 393

28. Charge of major penalty, minor penalty can be imposed ............................................... 393

29. Punishment after retirement ........................................................................................... 394

30. Withholding of pension .................................................................................................. 395

31. Punishment on report of Enquiry Officer not appointed by disciplinary authority ......... 395

32. Punishment with retrospective effect ............................................................................. 395

33. Punishment, discrimination in imposing of .................................................................... 396

34. Punishment, consideration of by Court .......................................................................... 397

35. Order of punishment, whether should be in standardised form ...................................... 397

36. Removal or dismissal by an authority subordinate to that by which civil servant was

appointed is void and inoperative ................................................................................... 397

37. Second opportunity rule not applicable even to proceedings initiated prior to 1977 ...... 399

ACTION ON THE INQUIRY REPORT Sub-rule (1)

1. Enquiry officer and disciplinary authority: Generally — When the

inquiry is conducted by the inquiry officer his report is not final or conclusive and the

disciplinary proceedings do not stand concluded. The disciplinary proceedings stand

concluded with decision of the disciplinary authority. It is the disciplinary authority

which can impose the penalty and not the inquiry officer. Where the disciplinary

authority itself holds an inquiry an opportunity of hearing has to be granted by him.

When the disciplinary authority differs with the view of the inquiry officer and

proposes to come to a different conclusion, there is no reason as to why an opportunity

of hearing should not be granted. In any such situation the charged officer must have an

opportunity to represent before the Disciplinary Authority before final findings on the

charges are recorded and punishment imposed. Punjab National Bank v. Kunj Behari

Misra, 1998(7) SCC 84: AIR 1998 SC 2713: 1998(5) JT 548: 1998(5) SLR 715:

1999(1) SLJ 271: 1998(80) FLR 341: 1998(2) KLT 66(SN): 1998(2) LLJ 809: 1998 Lab

IC 3012: 1998(93) FJR 588.

2. Power to Remit Case for Further Enquiry — In case of disagreement, the

Disciplinary Authority should record reasons for such disagreement and then to record

his own findings if the evidence available on record be sufficient for such exercise or

else to remit the case to the Enquiry Officer for further enquiry and report. Bank of

India v. Degala Suryanarayana, AIR 1999 SC 2407: 1999(5) SCC 762: 1999(4) JT 489:


1999(4) SLR 292: 1999(2) LLJ 682: 1999 Lab IC 2819: 1999(3) LLN 532: 1999(82)

FLR 1004: 1999(95) FJR 477: 1999(3) SCJ 168.

When the inquiring authority has submitted his report, it is open to the

disciplinary authority to refuse or accept it and to send back the matter to the Enquiry

Officer making further inquiry. Keshab Chandra Sarama v. State of Assam, AIR 1962

Assam 17. See also Union of India v. Mohd. Ramzan Khan, 1990 Supp(3) SCR 248:

1991(1) SCC 588: AIR 1991 SC 471: 1990(4) JT 456: 1991 (78) FJR 207: 1991(1) ATR

120: 1991(16) ATC 505: 1990(61) FLR 736: 1991(1) SLR 159: 1991(1) SLJ 106: 1991

Lab IC 308.

This power should be invoked only if necessary for ends of justice and must be

exercised with care. Such an order would be illegal if it is passed not on any error on

the part of the Enquiry Officer or defect in the procedure adopted by it but merely to

enable the presenting officer to supply the deficiencies to prove the charges and to do

what he had failed to do.

Disciplinary Authority can order only a limited further inquiry. M.S. Halwe v.

Union of India, 1987(3) SLJ 687.

The Railway Servants (Discipline and Appeal) Rules, 1968, Rule 10, [which

corresponds to Rule 15, CCS (CCA) Rules] does not empower the disciplinary

authority, who disagrees with the finding of the inquiring authority to remit the case for

fresh inquiry. H.D. Chothani v. Additional Divisional Railway Manager, Central

Railway, 1990(3) SLJ 288 (CAT, New Bombay).

Rule 10(2), Railway Servants (Discipline and Appeal) Rules, 1968, reads

as under:—

“10.(2) The disciplinary authority, if it is not itself the enquiring authority,

may, for reasons to be recorded in writing, remit the case to the enquiry

authority for further inquiry and report and the enquiry authority shall

thereupon proceed to hold the further inquiry according to the provisions of

Rule 9 as far as may be.”.

The rule does not envisage a de novo inquiry by appointing another Inquiry

Officer. Ordering another Enquiring Officer after the inquiry authority has submitted

his report is also illegal where the second inquiry is itself illegal for the reason

mentioned above and the order passed as a result of such inquiry also cannot stand and

has to be quashed. L.David v. Union of India, 1990(14) ATC 590 Mad.

3. De nova Enquiry — There is no provision in the rules to order a de nova

inquiry after wiping out the enquiry already conducted. The Disciplinary Authority

however can remit the case to the inquiry authority for further inquiry. K.R. Deb v.

Collector of Central Excise, AIR 1971 SC 1447: 1971 Supp SCR 375: 1971(2) SCC

102: 1971(1) SLR 29: 1971 Lab IC 945: 1971(1) LLJ 427; Kesevan Nambodiri v. State

of Kerala, 1982(2) SLJ 387, See also Som Nath Sharma v. Union of India, 1994(7) SLR

503 (CAT, Chandigarh).

Disciplinary proceedings, were initiated. Submission of inquiry report after

completion of the enquiry took place - Inquiry report was rejected in toto by the


disciplinary authority and appointment of another inquiry officer was ordered. Action

of disciplinary authority was held to be bad in law. V. Ramachandran v. Union of India,

1992(1) SLR 57 (CAT, Madras).

If in a particular case where there has been no proper enquiry because of some

serious defect having crept into the inquiry or some important witnesses were not

available at the time of the inquiry or were not examined, the Disciplinary Authority

may ask the Inquiry Officer to record further evidence but that provision would not

enable the Disciplinary Authority to set aside the previous enquiries on the ground that

the report of the Enquiry Officer does not appeal to the Disciplinary Authority. In this

case the basis upon which the Disciplinary Authority set aside the enquiry is that the

procedure adopted by the Enquiry Officer was contrary to the relevant rules and affects

the rights of the parties and not that the report does not appeal to him. When important

evidence, either to be relied upon by the department or by the delinquent official, is

shut out, this would not result in any advancement of any justice but on the other hand

result in a miscarriage thereof. Therefore, the Disciplinary Authority may record his

findings on the report and pass an appropriate order including ordering a de nova

enquiry in a case of such nature. Union of India v. P. Thayagarajan, AIR 1999 SC 449:

1999(1) SCC 733: 1998(5) SLR 734: 1999(2) SLJ 72: 1999(1) LLJ 507: 1999 LIC 169:

1999(81) FLR 76: 1999(94) FJR 347.

Sub-rule (2), (3) and (4)

4. Disagreement with Enquiry officer — When the Enquiry Officer makes the

report in favour of a public servant and the disciplinary authority records contrary

opinion, the action cannot be said against the provisions of Article 311. Union of India

v. H.C. Goel, AIR 1964 SC 364: 1964(4) SCR 718: 1965(1) SCJ 184: 1964(1) LLJ 38:

1964(9) FLR 161; A.N. D”silva v. Union of India, AIR 1962 SC 1130: 1962 Supp(1)

SCR 968: 1962(2) SCJ 126.

5. Disciplinary Authority to give its Reasons of Disagreement — In case of

the disagreement with the findings of the enquiring officer, the Disciplinary Authority

has to record its reasons for its disagreement with those findings. The enquiring officer

having found the charge not proved, the Disciplinary Authority should not find the

petitioner guilty of the charge without giving its reasons for disagreement and in the

absence of the independent finding on the evidence. T.S. Srivastava v. State of Assam,

AIR 1972 Gau 2 (SB); Union of India v. Dalip Singh, 1973 SLJ 728; Union of India v.

Krishan Kumar, 1982(1) SLR 359, See also S.N. Singh v. Rajasthan Atomic Power

Project, 1993(7) SLR 431 Raj (DB). State Bank of India v. Arvind K. Shukla, 2001(1)

LLJ 1419: AIR 2001 SC 2398: 2001(3) SLR 602.

See also Punjab National Bank v. Kunj Behari, JT 1998(5) SC 548; High Court

of Judicature at Bombay v. Shashikant S. Patil, 2000(1) SCC 416: AIR 2000 SC 22:

1999 Lab IC 3833: 1999(83) FLR 1001: 1999(5) SLR 615: 2000(1) SCJ 10: 2000(2)

SLJ 98: 2000(1) LLN 317.

Disciplinary Authority disagreed with the Enquiry Report, after recording its

reasons, the employee was discharged. Subsequently, the disciplinary authority started

the inquiry de nova, after passing an order. It was held that this was illegal.


Disciplinary authority had become functus officio. Balloo Singh v. Union of India,

1989(7) SLR 261 (CAT, Jabalpur).

Remitting back the inquiry proceeding time and again by the Disciplinary

Authority, after the close of evidence and submission of report was done, without

recording any reason is improper. Statements of witnesses were not included in the list

recorded after the remittance. Enquiry, it was held that it could be remitted only for a

limited purpose, for removing some ambiguity in the evidence or to remove some

procedural defects. Order remitting back the enquiry proceedings was void. All further

proceedings (including the order of dismissal) were also pronounced to be illegal. Bansi

Ram, Commandant v. H.P. SSB Bn Shamshi, Kulu District, 1988(4) SLR 55.

Only in those cases where the Disciplinary Authority considers it necessary to

direct fresh or further enquiry or disagrees with the findings of the Enquiry Officer, it

has to record the reasons for its such directions, but there is no such obligation if it

agrees with the findings of the Enquiry Officer. State Bank of Bikaner and Jaipur v.

Prabhu Dayal Grover, AIR 1996 SC 320: 1995 Supp (3) SCR 785: 1995(6) SCC 279:

1995(7) JT 207: 1996 Lab IC 210: 1996(72) FLR 1: 1996(1) LLJ 288: 1996(1) SLJ 145.

In one case that disciplinary Authority without supplying inquiry report gave

show cause notice proposing to dismiss the employee on the charges from which

employee was exonerated by inquiry officer. Held that it prima facie looks unfair and

matter remitted to disciplinary authority to communicate reasons for his disagreement

with the Enquiry Officers findings to the employee, hear him and pass orders according

to law. R.R. Gabhane v. State of Madhya Pradesh, 1998(8) SCC 549: 1999(3) LLJ 324.

6. Natural Justice — Though Disciplinary Authority is entitled to differ with

Inquiry Officer. It must give opportunity of hearing to the employee, failing which

decision of Disciplinary authority being in violation of principles of natural justice is

illegal. Member Secretary, Punishing Authority, APSEB v. G. Amruthaiah, 2002(1) SLR

575 AP (DB).

A delinquent employee has the right of hearing not only during the enquiry

proceedings conducted by the Enquiry Officer into the charges levelled against him but

also at the stage at which those findings are considered by the Disciplinary Authority

and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does

not agree with the findings recorded by the Enquiry Officer. If the findings recorded by

the Enquiry Officer are in favour of the delinquent and it has been held that the charges

are not proved, it is all the more necessary to give an opportunity of hearing to the

delinquent employee before reversing those findings. The formation of opinion should

be tentative and not final. It is at this stage that the delinquent employee should be

given an opportunity of hearing after he is informed of the reasons on the basis of

which the Disciplinary Authority has proposed to disagree with the findings of the

Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the

Constitution as it provides that a person shall not be dismissed or removed or reduced

in rank except after an enquiry in which he has been informed of the charges against

him and given a reasonable opportunity of being heard in respect of those charges. So

long as a final decision is not taken in the matter, the enquiry shall be deemed to be

pending. Mere submission of findings to the Disciplinary Authority does not bring


about the closure of the enquiry proceedings. The enquiry proceedings would come to

an end only when the findings have been considered by the Disciplinary Authority and

the charges are either held to be not proved or found to be proved and in that event

punishment is inflicted upon the delinquent. That being so, the “right to be heard”

would be available to the delinquent up to the final stage. This right being a

constitutional right of the employee cannot be taken away by any legislative enactment

or Service Rule including Rules made under Article 309 of the Constitution. Yoginath

D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83)

FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39.

Opportunity of hearing by the disciplinary authority. The disciplinary authority

can disagree with the findings arrived at by the enquiring officer and act upon his own

conclusion, but the only requirement is that the said disciplinary authority must record

reasons for his disagreement with the findings of the enquiry officer. If the disciplinary

authority gives reasons for disagreeing with the findings of enquiring officer then the

Court cannot interfere with those findings unless it comes to the conclusion that no

reasonable man can come to the said finding. Held that there is no force in the

submission of the learned counsel appearing for the delinquent government servant that

before the disciplinary authsority proceeds to award punishment, the delinquent

government servant should have been afforded a further opportunity of hearing. Held

further that charges having been framed and the delinquent government servant having

filed his show cause to the set of charges, the regular enquiry having been held and the

enquiring officer having recorded his findings and thereafter the disciplinary authority

having disagreed with the findings by recording the reasons therefore and ultimately

awarding minor punishment of stoppage of one increment without cumulative effect,

there is no procedural irregularity therein nor can it be said that there has been any

violation of principle of natural justice. State of Rajasthan v. M.C. Saxena, 1998(3)

SCC 385: AIR 1998 SC 1150: 1998(2) JT 103: 1998(1) SLR 787: 1998(1) LLJ 1244:

1998(79) FLR 140: 1998(3) SLJ 10: 1998 Lab IC 1038: 1998(93) FJR 582: 2000(1)

LLN 35.

7. Disagreement with Enquiry Officer or Committee, When High Court to Interfere — It was open to the Disciplinary Authority to accept the evidence of the

witnesses and he was not bound by the conclusions reached by Enquiry Committee.

This is not a case where it can be said that the finding of Disciplinary Authority is not

supported by any evidence nor it can be said that no reasonable person could have

reached at such a finding. High Court in the exercise of its certiorari jurisdiction could

not have interfered with conclusions reached by Disciplinary Authority in such a case.

Railway Board v. Niranjan Singh, AIR 1969 SC 966: 1969(3) SCR 548: 1969(1) SCC

502: 1969(2) SCJ 573: 1969(36) FJR 34: 1969 Lab IC 1368: 1969(18) FLR 300:

1969(2) LLJ 743; Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269.

If the Disciplinary Authority does not agree with the finding of the Enquiry

Officer, the dissent must be communicated to the employee. Y.K. Verma v. Union of

India, 1988(1) SLR 15, 28 para 40 (CAT, Jabalpur).

Judicial Review, not being an appeal from a decision, but a review of the

manner in which the decision was arrived at, the Court while exercising the power of


Judicial Review must remain conscious of the fact that if the decision has been arrived

at by the Administrative Authority after following the principles established by law and

the rules of natural justice and the individual has received a fair treatment to meet the

case against him, the Court cannot substitute its judgment for that of the Administrative

Authority on a matter which fell squarely within the sphere of jurisdiction of that

authority. Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625:

1999(1) SCC 759: 1999(1) LLJ 962: 1999(1) SCJ 265: 1999(1) KLT 38(SN): 1999 LIC

918: 1999(1) LLN 1067: 1999(81) FLR 462: 2000(1) SLJ 65.

8. Bias of Punishing Authority — The proceedings stand vitiated where the

punishing authority has already made up his mind. Rajendra Narain Tewari v. Haryana

Government, 1973(2) SLR 331: 1973 SLJ 978. He, who hears and decides questions

judicially, must be an impartial person free from any bias against the party before him

is salient principle of natural justice and this principle also applies to quasi judicial

authorities. Madan Gopal Gupta (Dr) v. Agra University, 1975 Lab IC 3. The fact that

the Chief Engineer had himself seen the bearings being recovered from the possession

of the petitioner whose positive case is that the bearings were planted by A, was bound

to be affected by the fact that the competent authority had seen the bearing being

recovered. In a sense, the decision of the competent authority was really an empty

formality, and it would, therefore, not be possible to sustain the dismissal order passed

by him against the petitioner. D.J. Warkari v. K.V. Karanjikar, 1980(1) SLR 839.

The allegation must be specific and the employee must be given chance to give

reply to the said allegations in specific. After consideration of the show-cause along

with the charge-sheet and the reply of the employee in respect of the charges levelled

against him the authority is to decide whether there will be an enquiry on the basis of

the charge-sheet or not. If on very issuance of the charge-sheet before receipt of reply

the authority decide that an enquiry would be held then it smacks of bias. The authority

appears to be biased without waiting for the reply to the charge-sheet decides that any

enquiry would be held against the employee concerned. In fact, charge-sheet/show

cause or its reply is a matter of serious consideration of the authority inasmuch as if the

authority is satisfied with the reply of the employee to the charge-sheet/show cause, the

authority may not or need not have to proceed with any enquiry and if the authority is

not satisfied then and then only there would be enquiry. If in the charge-sheet itself it is

stated that an enquiry would be held on the basis of the charges and the employee is

asked to give reply to the charge-sheet, then there remains no meaning in submission of

the reply inasmuch as the authority has already decided to hold the enquiry and this is

real bias. Tarakeswar Nandi v. Food Corporation of India, 2002(1) SLR 480 Cal.

9. Enquiry Officer acting as Disciplinary Authority— One of the principles

of natural justice is that no person shall be a judge in his own cause or the adjudicating

authority must be impartial and must act without any kind of bias. The said rule against

bias has its origin from the maxim known as “Debet esse Judex in Propria Causa”,

which is based on the principle that justice not only be done but should manifestly be

seen to be done. This could be possible only when a judge or an adjudicating authority

decides the matter impartially and without carrying any kind of bias. Bias may be of

different kind and form. It may be pecuniary, personal or there may be bias as to the

subject-matter etc. Amar Nath Chowdhury v. Braithwaite and Company Ltd., 2002(1)


SCR 184: AIR 2002 SC 678: 2002(2) SCC 290: 2002(1) LLJ 1048: 2002(1) SCJ 268:

2002(2) SLJ 433: 2002(111) Comp Cas 707.

In this case, the question which arose was whether an authority can sit in

appeal against its own order passed in the capacity of Disciplinary Authority?

The facts were that the then Chairman-cum-Managing Director of the Company

acted as a Disciplinary Authority as well as an Appellate Authority when he presided

over and participated in the deliberations of the meeting of the Board while deciding the

appeal of the delinquent. It was held that such a dual function is not permissible on

account of established rule against bias. In a situation where such a dual function is

discharged by one and the same authority, unless permitted by an act of legislation or

statutory provisions, the same would be contrary to rule against bias. Where an

authority earlier had taken a decision, he is disqualified to sit in appeal against his own

decision, as he already prejudged the matter otherwise such an appeal would be termed

an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility.

Amar Nath Chowdhury v. Braithwaite and Company Ltd. (Supra).

In another case Regional Manager was the enquiring authority. It was not

proper for the Regional Manager to consider the enquiry report submitted by himself

and act as disciplinary authority. When Regional Manager was the enquiring authority,

authority superior in rank to him could be disciplinary authority. Punjab & Sind Bank v.

Chand Singh, 2001(4) SLR 694 P&H.

10. Disciplinary Authority is not Bound by Findings of Enquiry Officer — The Disciplinary authority is not bound by the findings of Enquiry Officer. He has to

consider the evidence before him. Though he has to consider Enquiry Officer”s report,

he is not bound by the letters” finding. Krishna Chandra Tandon v. Union of India, AIR

1974 SC 1589: 1974(4) SCC 374: 1974 Lab IC 1010: 1974 SLJ 415: 1974(2) SLR 718.

The Disciplinary Committee is neither an appellate nor a revisional body over

the Inquiry Officer”s report. It must be borne in mind that the inquiry is primarily

intended to afford the delinquent officer a reasonable opportunity to meet the charges

made against him and also to afford the punishing authority with the material collected

in such inquiry as well as the views expressed by the Inquiry Officer thereon. The

findings of the Inquiry Officer are only his opinion on the materials, but such findings

are not binding on the disciplinary authority as the decision making authority is the

punishing authority and, therefore, that authority can come to its own conclusion, of

course bearing in mind the views expressed by the Inquiry Officer. But it is not

necessary that the disciplinary authority should “discuss materials in detail and contest

the conclusions of the Inquiry Officer”. Otherwise the position of the disciplinary

authority would get relegated to a subordinate level. High Court of Judicature at

Bombay, through its Registrar v. Shashikant S. Patil, 1999(5) SLR 615 (SC).

If in a particular case where there has been no proper enquiry because of some

serious defect having crept into the inquiry or some important witnesses were not

available at the time of the inquiry or were not examined, the Disciplinary Authority

may ask the Inquiry Officer to record further evidence but that provision would not

enable the Disciplinary Authority to set aside the previous enquiries on the ground that


the report of the Enquiry Officer does not appeal to the Disciplinary Authority. Union

of India v. P. Thayagarajan, AIR 1999 SC 449: 1998 Supp (3) SCR 114: 1999(1) SCC

733: 1998(5) SLR 734: 1999(2) SLJ 72: 1999(1) LLJ 507: 1999 Lab IC 169: 1999(81)

FLR 76: 1999(94) FJR 347

While differing from the findings of Enquiry Officer, the Disciplinary

Authority should afford adequate opportunity to the employee before giving a

dissenting verdict. Y.K. Verma v. Union of India, 1988(1) SLR 15 (CAT, MP).

11. Disciplinary Authority to Apply Mind — It is imperative for the

Disciplinary Committee to discuss materials in detail and contest conclusions of the

Inquiry Officer. High Court of Judicature at Bombay v. Shashikant S. Patil, 2000(1)

SCC 416: 1999 Supp (4) SCR 205: AIR 2000 SC 22: 1999 Lab IC 3833: 1999(83) FLR

1001: 1999(5) SLR 615: 2000(1) SCJ 10: 2000(2) SLJ 98: 2000(1) LLN 317.

(ii) As per the relevant rules, competent authority to impose penalty of

dismissal was Chairman-cum-Managing Director but he had mechanically approved the

proposal of the Director (Commercial) who had also not examined the matter before

making his proposal. Held that whenever an Authority decides a matter, which entails

civil consequences to the person concerned, it must pass speaking order giving reasons.

Held further that the Chairman-cum-Managing Director who is the Competent

Authority to impose the penalty of dismissal upon the petitioner has not passed the

impugned order of dismissal after applying his mind to the inquiry report,

representation of the petitioner against the inquiry report and other facts and

circumstances on record. He had mechanically approved the proposal of the Director

(Commercial), who had also not examined the matter before making his proposal. In

fact, the matter has been dealt with as routine administrative matter, whereas, it was a

quasi-judicial matter involving service career of the petitioner and the Competent

Authority was required to pass speaking order by giving reasons for imposing the

penalty after considering the inquiry report, representation of the petitioner and other

material concerning disciplinary proceedings on record. Ashok Paper Mills Kamgar

Union v. Union of India, 2000(10) SCC 28: 2000(2) LLJ 659: 2000(4) LLN 18:

2000(87) FLR 437.

(iii) An assistant or official prepared office note. Note was signed by Director

and he did not pass any separate or independent order showing that he was satisfied for

reasons to be recorded by him. Director did not apply his mind. Order of dismissal set

aside for infraction of Article 311(2)(b) and the Disciplinary Rules. Union of India v.

Rajendra Prakash Tewari, 1970 SLR 392 (Delhi); Bibhuti Bhushan Paul v. State of

West Bengal, AIR 1967 Cal 29, see also State of Punjab v. Bakhtawar Singh, 1972

SLR 85; Aarander Singh v. General Manager, Northern Railway, 1973 SLJ 569:

1973(1) SLR 846.

(iv) Where the Disciplinary Authority failed to apply its mind to the report and

record of the inquiry before inflicting the punishment to the prejudice of the petitioner,

held, he failed to act justly and fairly but acted capriciously. Order of removal quashed.

Badrul Huda Ahmed v. State of Assam, 1972 SLR 62 Assam.


(v) The case file during the course of enquiry including the statements of

prosecution and defence witnesses had been gutted, in the fire. The Disciplinary

Authority passed penalty order on the basis of enquiry report. The Appellate Authority

rejected the appeal. Orders were quashed being based on no evidence. Chatter Singh v.

Deputy Commissioner, 1982(1) SLR 163.

Where —.

(a) the findings of the Enquiry Officer are based on flimsy grounds, and.

(b) the Disciplinary Authority and the Appellate Authority do not even look

into those findings,.

The orders of the Disciplinary and Appellate Authorities are vitiated by non-

application of mind and cannot be said to be proper speaking orders. N.S. D”Mello v.

Union of India, 1990(6) SLR 280 (CAT, Jabalpur).

12. Dismissal in default — Application informed the Registry by Post, praying

for disposal of his case on the basis of his pleadings and stating that he did not want

oral hearing. The letter did not come to the notice of the members who decided the

case. Application was dismissed for default. It was held that sufficient cause existed for

restoration of the application. K. Vaidyanathan v. Director General, Departmental of

Telecommunications, New Delhi, 1988(4) SLR 606 (CAT Madras). See also S.N. Singh

v. Rajasthan Atomic Power Project, 1993(7) SLR 421 Raj (DB).

Disciplinary Authority must consider every allegation in the charge and the

detailed explanation thereto. Merely saying that the matter has been considered, is not

enough. It shows non-application of the mind. A Palaniswamy v. Union of India,

1989(5) SLR 239 (CAT Madras). See also Dheru Ram v. State of Punjab, 1993(8) SLR

142 P&H (DB).

The employee is dismissed from duty due to unauthorised absence. Though the

copy of dismissal order is not supplied to him the dismissal becomes valid. Charanjit

Singh Khurana v. Union of India, 1994(2) SLR 519.

13. Disciplinary Authority Whether to Give Reasons for Accepting the Findings of Enquiry officer — Where disciplinary authority disagrees with the

enquiry officer on certain articles of charges, then before recording its finding, it is duty

bound to record its tentative reasons for such disagreement and give the same to

delinquent officer for opportunity to represent. State Bank of India v. Arvind K. Shukla,

2001(1) LLJ 1419: AIR 2001 SC 2398: 2001(3) SLR 602.

It is conceivable that if the State Government does not accept the findings of

the Enquiry Tribunal which may be in favour of the delinquent officer and proposes to

impose a penalty on the delinquent officer, it should give reasons why it differs from

the conclusion of the Tribunal, though even in such a case it is not necessary that the

reasons should be detailed or elaborate. But where the State Government agrees with

the findings of the Tribunal which are against the delinquent officer, as a matter of law,

it could not be said that the State Government cannot impose the penalty in accordance

with the findings of the Tribunal unless it gives reasons to show why the said findings

were accepted by it. State of Madras v. A.R. Srinivasan, 1967(1) SCJ 855: 1969(II)


SCWR 524: AIR 1966 SC 1827; State of Haryana v. Ram Chander, 1976 SLJ 689:

1976(2) SLR 690; State of Haryana v. Ram Kumar, 1982(1) SLR 267; Shaymlal Tyagi

v. H.S.E.B., 1982(2) SLR 575.

If a Disciplinary Authority agrees with the recommendations of the Inquiry

Authority, reasons need not be given. If it disagrees then reasons have to be given

though not elaborately or in depth. K.V.Hanumantha Rao v. High Court of A.P.,

1988(2) SLR 464 para 11 CAT (DB) (Reviews case law).

Disciplinary authority, if it agrees with the findings of the Inquiry Officer, need

not give reasons. Ram Singh v. Union of India, 1988(6) SLR 218 (CAT Chandigarh).

It has now been settled by the Supreme Court that when the Disciplinary

Authority agrees with the findings of the Enquiry Officer and accepts the reasons given

by him in support of such findings, it is not necessary for the punishing authority to re-

appraise the evidence to arrive at the same findings. State Bank of Bikaner and Jaipur

v. Prabhu Dayal Grover, AIR 1996 SC 320: 1995(6) SCC 279: 1995(2) BC 485: 1996

Lab IC 210: 1996(72) FLR 1: 1996(1) LLJ 288: 1996(1) SLJ 145.

14. Quasi-judicial Authorities should Indicate Reasons — The quasi judicial

authorities should indicate the reasons. But if the reasons can be found out either from

the order itself or from other documents it would not be proper to strike down the order

merely because the formal reasons had not been recorded in the order itself. Hari

Prasad Singh v. Commissioner of Income Tax, AIR 1972 Cal 27; Nand Kishore Prasad

v. State of Bihar, 1978 SLJ 591: 1978(2) SLR 46: AIR 1978 SC 1277: 1978(3) SCR

708: 1978(3) SCC 366: 1978 Lab IC 1106.

The punishing authority is a quasi judicial authority and his order is subject to

appeal etc. As a quasi judicial authority, it is incumbent upon him to write a reasoned

order so that the Appellate Authority may know as to what prevailed with the punishing

authority while punishing the delinquent officer. No hard and fast principles can be laid

down as to what should be written in the order. It is not necessary that he should write a

detailed order, but it is required that he should record reasons in the order, so that the

delinquent can effectively challenge them in appeal etc. Bhagat Raja v. Union of India,

AIR 1967 SC 1606: 1967(3) SCR 302; Vijay Singh Yadav v. State of Haryana, 1971(1)

SLR 720; Tarlochan Singh v. State of Punjab, 1975 SLJ 387; P.K. Mittal v. State of

Punjab, 1982(2) SLR 267.

Disciplinary Authority without supplying inquiry report gave show cause

notice proposing to dismiss the employee on the charges from which employee was

exonerated by inquiry officer. Held that if prima facie looks unfair and matter remitted

to disciplinary authority to communicate reasons for his disagreement with the Enquiry

Officers findings to the employee, hear him and pass orders according to law. R.R.

Gabhane v. State of Madhya Pradesh, 1998(8) SCC 549: 1999(3) LLJ 324.

15. Disciplinary Authority: Power to interfere with other enquiries— If in a

particular case where there has been no proper enquiry because of some serious defect

having crept into the inquiry or some important witnesses were not available at the time

of the inquiry or were not examined, the Disciplinary Authority may ask the Inquiry

Officer to record further evidence but that provision would not enable the Disciplinary


Authority to set aside the previous enquiries on the ground that the report of the

Enquiry Officer does not appeal to the Disciplinary Authority. In this case the basis

upon which the Disciplinary Authority set aside the enquiry was that the procedure

adopted by the Enquiry Officer was contrary to the relevant rules and affects the rights

of the parties and not that the report does not appeal to him. When important evidence,

either to be relied upon by the department or by the delinquent official, is shut out, this

would not result in any advancement of any justice but on the other hand result in a

miscarriage thereof. Therefore, the Disciplinary Authority may record his findings on

the report and pass an appropriate order including ordering a de nova enquiry in a case

of this nature. Union of India v. P. Thayagarajan, AIR 1999 SC 449: 1999(1) SCC 733:

1998(5) SLR 734: 1999(2) SLJ 72: 1999(1) LLJ 507: 1999 LIC 169: 1999(81) FLR 76:

1999(94) FJR 347.

16. Order of Disciplinary Authority to Show what Charges had been

Established — Where the order of disciplinary authority does not show what charges

against the delinquent officer had been established, the said order is not a speaking

order and it cannot be upheld. State of Punjab v. Bakhtawar Singh, 1972(4) SCC 730:

AIR 1972 SC 2083: 1972 SLR 85 (SC).

Neither the finding nor the recommendations of the Inquiry Officer are binding

on the Disciplinary Authority. If there are charges against the employee, it is for the

Disciplinary Authority to be satisfied that the employee is guilty and deserves

punishment proposed. The satisfaction of the Inquiry Officer cannot take place of the

satisfaction of the Disciplinary Authority, as this would amount to his acting in a

mechanical way. After the report is received, the Disciplinary Authority is entitled to

consider the report and the evidence led against the delinquent employee. The

Disciplinary Authority may agree with the report or may differ either wholly or

partially from the conclusions recorded in the report. The enquiry report along with the

evidence recorded constitute material on which the Disciplinary Authority has

ultimately to act. Dilbir Singh v. State of Punjab, 1999(3) SLR 140 P&H.

Consideration of the enquiry report in the light of the representation made by

the government employee cannot be taken to be a mere formality because fair play

requires recording of reasons when order affects the right of a person. Recording of

reasons is also an assurance that the Authority concerned applied its mind to the facts

on record. It also aids the appellate or Revisional Authority or supervisory jurisdiction

of the High Court under Article 226 of the Constitution of India to see whether the

Authority concerned acted fairly and justly to meet out justice to the aggrieved person.

Dilbir Singh v. State of Punjab (supra).

17. Order should be a Speaking Order — To understand the approach of the

punishing authority and also the mind of the Appellate Authority and the grounds on

which the impugned orders have been passed, it is necessary that the order should be a

speaking order and should give the grounds on which it has been passed. Mohinder

Singh v. State of Punjab, 1968 Cur LJ (P&H) 476; Ram Sahai v. G.M., Northern Rly,

1967 Cur LJ (P&H) 296; Bhagat Raja v. Union of India, AIR 1967 SC 1606; Rajinder

Singh v. Punjab State, 1969 Cur LJ 821: 1969 SLR 754; Rajinder Pal v. State of

Punjab, 1971(2) SLR 130: AIR 1971 Punjab 290; H.K. Khanna v. Union of India,


1971(1) SLR 618; Nand Kishore Prasad v. State of Bihar, AIR 1978 SC 1277: 1978(3)

SCR 708: 1978(3) SCC 366: 1978(2) SLR 46: 1978 SLJ 591: 1978 Lab IC 1106:

1978(2) LLJ 84: 1978 SLJ 591: 1978(2) LLN 278.

The matter can not be dealt with as routine administrative matter as it is a quasi

judicial matter involving service career of the employee and the Competent Authority is

required to pass speaking order by giving reasons for imposing the penalty after

considering the enquiry report, representation of the petitioner and other material

concerning disciplinary proceedings on record. Whenever an Authority decides a

matter, which entails civil consequences to the person concerned, it must pass speaking

order giving reasons. Yashpal Singh v. National Textile Corporation Ltd., 1999(1) SLR

680 HP (DB).

In one case the Disciplinary Authority did not agree with the finding of the

Enquiry Officer and issued the notice to the petitioner to show cause as to why he

should not be punished as he did not agree with the finding recorded by the Enquiry

Officer. Order, though run into seven typed pages, it was as good as a non-speaking

order. Only in seven lines the Disciplinary Authority said that he does not agree with

the cause shown by the petitioner in his reply. The impugned order set aside as it was a

non-speaking order. Paras Ram v. State of Rajasthan, 1999(1) SLR 581 Raj.

After a regular enquiry the Enquiry Officer held that the charge was not

proved. The Disciplinary Authority, however, did not agree with the report of the

Enquiry Officer and came to the conclusion that the charge against the respondent stood

proved. The respondent was consequently served with notice to show cause as to why

he should not be removed from service. After taking into consideration his explanation,

the following order was passed:—

“I have thoroughly gone through the defence put up. There is no new point put

up by him which needs further consideration. He is considered guilty of charge

of theft and is removed from service”.

The order does not show as to what were the points raised by the respondent

and why were those found to be not tenable. Order quashed not being a speaking order.

Union of India v. Krishan Kumar, 1982(1) SLR 359.

The respondent had raised a plea that a witness had been coerced by the

Enquiry Officer to make a statement against him even though on an earlier occasion he

had made a statement in his favour. This was an important plea about the character of

the Enquiry Officer. If the dismissing authority wanted to accept the report of the

Enquiry Officer, it had to give a finding that the said Enquiry Officer was, not proved

to be biased. No such thing is mentioned in the order. The order of punishing authority

was held not being a speaking order. Union of India v. Lila Dhar, 1982(1) SLJ 646.

18. Extraneous Matters not be Considered — The disciplinary authority

should not take into consideration extraneous matters. He is to act in quasi judicial

manner. Ramarao Laxmikant Shirkhedkar v. Accountant General, Maharashtra, AIR

1963 Bom 121; State of Mysore v. K. Manche Gowda, AIR 1964 SC 506: 1964 (4)

SCR 540.


Neither in the charge-sheet nor in the show cause notice, was ever a reference

made that the previous service record of the Officer will be considered by the

disciplinary authority. The disciplinary authority took into consideration the past record

the ordered dismissal. Order quashed. Ramshai v. Board of Revenue, Rajasthan, 1977

SLJ 241: 1977(1) SLR 605; General Manager, Northern Railway v. Harbans Singh,

1979(3) SLR 590.

In a departmental inquiry finding on a charge not included in the charge-sheet

is not permissible. Y.K. Verma v. Union of India, 1988(1) SLR 15, 25, 27 para 32, 39

(CAT Jabalpur).

Consideration of extraneous material in the form of adverse comments of

another Officer while the report of Enquiry Officer was in favour of employee. Matter

remanded with the direction that disciplinary authority should decide the matter afresh

only on the basis of the relevant material excluding from consideration the extraneous

material in the form of adverse comments of the other officer. Uttar Pradesh State Agro

Industrial Corporation Ltd. v. Padam Chand Jain, 1995(30) ATC 328: 1995(4) SLR

742: 1995(2) LLJ 697.

Interference with the decision of departmental authorities can be permitted,

while exercising jurisdiction under Article 226 of the Constitution if such authority had

held proceedings or in violation of the principles of natural justice or in violation of

statutory regulations prescribing the mode of such inquiry or if the decision of the

authority is vitiated by considerations extraneous to the evidence and merits of the case

etc. High Court of Judicature at Bombay v. Shashikant S. Patil, 2000(1) SCC 416: AIR

2000 SC 22: 1999 Lab IC 3833: 1999(83) FLR 1001: 1999(5) SLR 615: 2000(1) SCJ

10: 2000(2) SLJ 98: 2000(1) LLN 317.

Consideration of extraneous material in the form of adverse comments of

another Officer while the report of Enquiry Officer was in favour of employee, held not

proper. Matter remanded with the direction that disciplinary authority should decide the

matter afresh only on the basis of the relevant material excluding from consideration

the extraneous material in the form of adverse comments of the other officer. Uttar

Pradesh State Agro Industrial Corporation Ltd. v. Padam Chand Jain, 1995(30) ATC

328: 1995(4) SLR 742: 1995(2) LLJ 697.

19. Suspicion, no Substitute for Proof — However strong the suspicion is, it

can not be substituted for conclusive proof. Penalty cannot be imposed. K.S. Yadav v.

Municipal Corporation of Delhi, 1981(1) SLJ 394.

Though the degree of proof required in Disciplinary Proceedings is not of the

standard required in criminal case but the suspicion cannot be substituted for proof even

in Disciplinary Proceedings. Ministry of Finance v. S.B. Ramesh, 1998(3) SCC 227:

AIR 1998 SC 853: 1998(78) FLR 700: 1998(1) SLR 618: 1998(2) SLJ 67: 1998 Lab IC

623: 1998(1) LLN 968

20. High Court not to Review Materials in a Writ, If Enquiry Properly

Held — In departmental proceedings, the Disciplinary Authority is the sole Judge of

facts and in case an appeal is presented to the Appellate Authority, the Appellate

Authority has also the power/and jurisdiction to re-appreciate the evidence and come to


its own conclusion, on facts, being the sole fact finding authorities. Once findings of

fact, based on appreciation of evidence are recorded, the High Court in Writ

Jurisdiction may not normally interfere with those factual findings unless it finds that

the recorded findings were based either on no evidence or that the findings were wholly

perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not

permitted to be canvassed before the High Court. Since, the High Court does not sit as

an Appellate Authority, over the factual findings recorded during departmental

proceedings, while exercising the power of judicial review, the High Court cannot

normally speaking substitute its own conclusion, with regard to the guilt of the

delinquent, for that of the departmental authorities. Even insofar as imposition of

penalty or punishment is concerned, unless the punishment or penalty imposed by the

Disciplinary or the Departmental Appellate Authority, is either impermissible or such

that it shocks the conscience of the High Court, it should not normally substitute its

own opinion and impose some other punishment or penalty. Apparel Export Promotion

Council v. A.K. Chopra, AIR 1999 SC 625: 1999(1) SCC 759: 1999(1) LLJ 962:

1999(1) SCJ 265: 1999(1) KLT 38(SN): 1999 Lab IC 918: 1999(1) LLN 1067: 1999(81)

FLR 462: 2000(1) SLJ 65.

A conclusion or a finding of fact arrived at in a disciplinary enquiry can be

interfered with by the court only when there are no materials for the said conclusion, or

that on the materials, the conclusion cannot be that of a reasonable man. Syed

Rahimuddin v. Director General, CSIR, AIR 2002 SC 2418: 2002 SCC (L&S) 251:

2001(3) JT 609: 2002(4) SLR 165 (SC): 2001(89) FLR 427: 2001 AIRSCW 2388:

2001(2) AllWC 2388: 2001(2) AllWC 1247: 2001(1) Cur LR 36.

Where there are some relevant materials which the disciplinary authority has

accepted and which may reasonably support the conclusion, it is not the function of the

High Court exercising its jurisdiction under Article 226 to review the materials and to

arrive at an independent finding. If the enquiry has been properly held the question of

adequacy or reliability of the evidence cannot be canvassed before High Court. Union

of India v. Sardar Bahadur, 1971(II) SCWR 712: 1972 SLR 355; State of Andhra

Pradesh v. Sree Rama Rao, 1964(3) SCR 28 at page 33: 1964(1) SCJ 402: AIR 1963 SC

1723: 1964(3) SCR 25: 1964(2) LLJ 150: 1964(1) SCJ 402; State of A.P. v. Chitra

Venkata Rao, AIR 1975 SC 2151: 1976(1) SCR 521: 1975(2) SCC 557: 1975 Lab IC

1585: 1976(2) SCJ 227: 1975 SLJ 772: 1976(1) SLR 653; D.J. Warkari v. K.V.

Karanjkar, 1980(1) SLR 838.

21. High Court whether to Appraise Evidence in Writ — It was pointed out

by the Supreme Court in case of State of Orissa v. Murlidhar, AIR 1963 SC 404 that in

a proceeding under Article 226 and 227 of the Constitution, the High Court is not to sit

in appeal over the finding recorded by a competent Tribunal in a departmental enquiry.

If the High Court purports to re-appreciate the evidence for itself that would be outside

its jurisdiction. If, however, it is shown that the findings recorded by the Tribunal, are

not supported by any evidence, the High Court would be justified in setting aside the

findings. Muralidhar Mishra v. District Judge, Cuttack, 1977 SLJ 344. Sufficiency of

evidence in proof of the finding by a domestic tribunal is beyond scrutiny. State of

Haryana v. Rattan Singh, 1977(2) SCJ 140: AIR 1977 SC 1512: 1977(2) SCC 491:

1977 Lab IC 845: 1977(1) SLR 750: 1977 SLJ 408; Somnath Sahu v. State of Orissa,


1981(2) SLR 550 (SC); Kashi Ram Verma v. Municipal Committee, Mausa, 1981(1)

SLJ 203: 1981(1) SLR 290 (SC).

Judicial Review, not being an appeal from a decision, but a review of the

manner in which the decision was arrived at, the Court while exercising the power of

Judicial Review must remain conscious of the fact that if the decision has been arrived

at by the Administrative Authority after following the principles established by law and

the rules of natural justice and the individual has received a fair treatment to meet the

case against him, the Court cannot substitute its judgment for that of the Administrative

Authority on a matter which fell squarely within the sphere of jurisdiction of that

authority. Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625: 1999

(1) SCC 759: 1999 (1) LLJ 962: 1999 (1) SCJ 265: 1999 (1) KLT 38(SN): 1999 Lab IC

918: 1999(1) LLN 1067: 1999(81) FLR 462: 2000(1) SLJ 65.

If the disciplinary authority gives reasons for disagreeing with the findings of

enquiring officer then the Court cannot interfere with those findings unless it comes to

the conclusion that no reasonable man can come to the said finding. Held that there is

no force in the submission of the learned counsel appearing for the delinquent

government servant that before the disciplinary authority proceeds to award

punishment, the delinquent government servant should have been afforded a further

opportunity of hearing. Held further that charges having been framed and the delinquent

government servant having filed his show cause to the set of charges, the regular

enquiry having been held and the enquiring officer having recorded his findings and

thereafter the disciplinary authority having disagreed with the findings by recording the

reasons therefore and ultimately awarding minor punishment of stoppage of one

increment without cumulative effect, there is no procedural irregularity therein nor can

it be said that there has been any violation of principle of natural justice. State of

Rajasthan v. M.C. Saxena, 1998(3) SCC 385: AIR 1998 SC 1150: 1998(2) JT 103:

1998(1) SLR 787: 1998(1) LLJ 1244: 1998(79) FLR 140: 1998(3) SLJ 10: 1998 Lab IC

1038: 1998(93) FJR 582: 2000(1) LLN 35.

Appreciation of evidence which has already been scrutinised by the Enquiry

Officer as also by Disciplinary proceedings is permissible where the findings are

perverse and are not supported by evidence on record or the findings recorded at the

domestic trial are such to which no reasonable person would have reached and therefore

the Courts have power to interfere in the matter. Yoginath D. Bagde v. State of

Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR

377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39.

22. Challenge to Departmental proceedings by Public Interest Litigation— Departmental proceedings against IPS officer on the ground of misconduct was

challenged by a practising advocate by way of Public Interest Litigation. Held, it is

essentially a matter between employer and employee. A stranger much less a practising

advocate. It was held that a mere busy-body who has no interest cannot invoke the

jurisdiction of the Court. In respect of the departmental proceedings which are initiated

or sought to be initiated by the Government against its employees, a person who is not

even remotely connected with those proceedings cannot challenge any aspect of the

departmental proceedings or action by filing a Writ Petition in the High Court or in this


Court. Disciplinary action against an employee is taken by the Government for various

reasons principally for “misconduct” on the part of the employee. This action is taken

after a “domestic” enquiry in which the employee is provided an opportunity of hearing

as required by the constitutional mandate. It is essentially a matter between the

employer and the employee, and a stranger, much less a practising advocate, cannot be

said to have any interest in those proceedings. Public Interest of general importance is

not involved in disciplinary proceedings. In fact, if such petitions are entertained at the

instance of persons who are not connected with those proceedings. It would amount to

an abuse of the process of Court. Rajnit Prasad v. Union of India, AIR 2000 SC 3469:

2000(9) SCC 313: 2000(2) JT 31: 2000(1) SLR 663: 2000(2) LLN 86.

23. Minor Irregularity in Conducting Enquiry does not Vitiate a Correct

Finding — Any minor irregularity in the matter of conducting the enquiry cannot

vitiate a finding which is so obviously correct. Once it is held that the respondent was

properly found guilty under charge No. 1, it is unnecessary to go into the other charges.

State of U.P. v. Om Prakash Gupta, 1970(1) SCWR 139: AIR 1970 SC 679: 1969(3)

SCC 775: 1969 SLR 890: 1970 Lab IC 568.

24. Public Service Commission: Advice of — (i) The disciplinary authority

should not act mechanically on the advice of the Public Service Commission but should

apply his own mind to the case. Ramchandra Chaudhri v. Secretary to Government,

West Bengal, AIR 1964 Cal 265; Iswar Chandra Mohanty v. State of Orissa, AIR 1966

Ori 173; J.L.Mair v. State of Punjab, AIR 1968 Punjab 324; Shrikrishan v. State of

M.P., AIR 1970 MP 162. Governor cannot consult the P.S.C. in the case of the judicial

affairs and accept its advice and act accordingly. The advice should be of no other

authority than the High Court. Baldev Raj Guliani v. P&H High Court, 1977(1) SCR

425: AIR 1976 SC 2490: 1976(4) SCC 201: 1976(2) SLR 758: 1976 Lab IC 1633:

1977(1) LLN 14: 1976 SLJ 601: 1976 SLWR 511: 1976 SCC (Lab) 571.

(ii) The opinion given by P.S.C. is not binding. The impugned order is not

vitiated if the opinion of P.S.C. is not followed. There is no warrant of law that if no

reasons are given for not following the opinion of P.S.C., the order is bad. O.N. Saxena

(Dr.) v. State of Rajasthan, 1980 SLJ 582.

25. Public Service Commission, Consultation with — The provisions of

Article 320(3)(c) of the Constitution were not mandatory and did not confer any rights

on the public servant. Termination of service without consultation of Public Service

Commission not invalid. Ram Gopal Chaturvedi v. State of M.P., AIR 1970 SC 158:

1970(1) SCR 472: 1969(2) SCC 240: 1969 SLR 429: 1970(1) LLJ 367: 1970(1) SCJ

257: 1969(1) SCWR 1115, State of U.P. v. M.L. Srivastava, AIR 1957 SC 192; J.M.J.S.

Alexandra Gonsalves Pereira v. Administrator of Goa, 1982(2) SLJ 132.

26. Commissions” Recommendations of Advice, Non-supply of, to Delinquent Officer for his Comments — Article 311 of the Constitution is not

controlled by Article 320. Therefore, the reasonable opportunity contemplated under

Article 311 does not cover the furnishing of the advice of the Commission to the

delinquent officer for offering his remarks on such advice or recommendations. On non-

supply of Commissions” report, the impugned order is not vitiated. Chief Engineer v. A.

Changalvarayan, 1982(2) SLR 662.


27. Disciplinary Authority Obtained the Views of Vigilance Commissioner

— Disciplinary Authority was of the view that no inquiry need be initiated but

proceedings initiated at the directions/recommendations of CVC. Held that Disciplinary

Authority did not apply his independent mind for framing of the charges and therefore,

the same are tainted with illegality N.P.Kudva v. Syndicate Bank, 2002(1) SLR 55 Kar.

If the disciplinary authority arrived at its own conclusion on the material

available to it, its finding and decision cannot be said to be tainted with any illegality

merely because the disciplinary authority consulted the Vigilance Commissioner and

obtained his views on the very same material. Sunil Kumar Banerjee v. State of West

Bengal, 1980(3) SCR 179: AIR 1980 SC 1170: 1980(3) SCC 304: 1980 Lab IC 654:

1980(2) SLR 147: 1980(40) FLR 434: 1980 SCC (Lab) 369: 1980(2) SCJ 327.

The Enquiry Officer sent enquiry report to the Disciplinary Authority through

the Chief Vigilance Commissioner, who as per Government practice is required to

tender confidential comments and recommendations and also advising what penalty

should be imposed. These comments and recommendations not brought to the notice of

delinquent officer. Opinion of an august body like Central Vigilance Commission

would obviously carry great weight with the Disciplinary Authority in reaching a final

conclusion. Impugned order bad in law. A.K. Roy Chaudhry v. Union of India, 1982(1)

SLR 443: 1982(1) SLJ 186 Guj.

“Advice” of the Central Vigilance Commission is to be restricted to facts and

findings and not to extend to punishment which is prerogative of the Disciplinary

Authority. The Vigilance Manual, Vol. 1, 4th

Ed., when using the word “advice” has in

mind only facts and findings. The Vigilance Commission exceeds its powers in

suggesting dismissal. (Suggestion made that Government of India should advise the

Central Vigilance Commission not to give advice as to punishment). N. Sundaramurthy

v. Lt Governor of Podicherry, 1990(12) ATC 553 Mad. [Union of India v. Parmanand

Nanda, AIR 1989 SC 1185: 1989(2) SCR 19: 1989(2) SCC 177: 1989 SCC (L&S) 303:

1989(2) JT 132: 1989 Lab IC 1338: 1989(75) FJR 168: 1989(10) ATC 30: 1989(42)

ELT 320: 1989(2) SLR 410 followed].

Recommendations of the Chief Vigilance Officer though not binding on the

disciplinary authority but disciplinary authority passed the order of removal from

service at the time when the directive of the vigilance officer was operative. Held that it

can be presumed that the disciplinary authority was acting in accordance with the said

directive and imposed punishment in accordance with the recommendation made by the

Chief Vigilance Officer. The order was set aside and the matter was remitted back to

the disciplinary authority for reconsideration. Satyendra Chandra Jain v. Punjab

National Bank, 1997 (11) SCC 444.

28. Charge for Major Penalty, Minor Penalty can be Imposed — Charge-

sheet for major penalty, minor penalty can be imposed. M.M. Dutta v. Union of India,

AIR 1969 Cal 604; K.K. Mittal v. Union of India, 1974(2) SLR 602 Delhi; Keshri Mal

v. State of Rajasthan, 1979(3) SLR 1.


However where the disciplinary proceedings were initiated for a charge which

entails minor penalty, the Disciplinary Authority is not permitted to convert it to major

penalty after completion in of inquiry. Deep Chand v. Union of India, 2002(3) SLR 665 Gau.

When an inquiry has been held for imposition of a major penalty and finally

minor penalty is awarded, the suspension should be considered unjustified and in terms

of F.R. 54B the employee should be paid full pay and allowances for the period of

suspension by passing a suitable order under F.R. 54-B. S.P. Naik v. Board of Trustees,

Mormugao Port Trust, Goa, 1999(3) SLR 577 Bom (DB).

29. Punishment After Retirement — Order of suspension passed pending

enquiry into charges. Petitioner submitted written explanation denying the truth of

charges. Enquiry not started. Petitioner”s superannuation after the notice served on him

to attend enquiry. Petitioner replied that authorities had no jurisdiction to conduct any

enquiry as he had retired. Enquiry held ex parte and show cause notice issued why a cut

of 25 per cent should not made in his pension and thereafter penalty imposed. Order

held illegal and void. N.L. Sastry v. State of A.P., 1969 SLR 372; State of Assam v.

Padma Ram, AIR 1965 SC 473.

A disciplinary proceeding against a Government servant comes to an end when

he retires and there is no power in Government to retain him in service so that a

punishment may be imposed on him in a pending disciplinary proceeding. K.S.

Rajasekhriah v. State of Mysore, 1968 SLR 269; Subba Rao v. State of Mysore, 1963

(1) Mys LJ 80; A.R.R. Deshpande v. Union of India, (1971) 2 SLR 776; O.P.Gupta v.

Union of India, 1981 (3) SLR 778; Mukhtiar Chand Dhir v. State of Punjab, 1982 (1)

SLR 889.

Where in the service rules no specific provision was made for deducting any

amount from the provident fund consequent to any misconduct determined in the








666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999










1999(1) AD(Delhi) 649: 1999(1) LLJ 871.






30. Withholding of pension— During pendency of minor penalty proceedings

against retired employee the pension was withheld. Held that the pension cannot be

withheld. AJM Prasasada Rao v. Chairman, Visakhapatnam Port Trust,

Visakhapatnam, 2002(1) SLR 478.

31. Punishment on Report of Enquiry Officer not Appointed by Disciplinary Authority — Where the punishing authority passed orders of removal of

petitioner on the basis of report of Enquiry Officer who had been appointed by an

authority who was not competent to take disciplinary action against the Government

servant, held, the order of removal cannot be maintained as the disciplinary proceedings

were initiated by an authority who had no right to initiate the same. Baldev Singh v.

Secretary to Government of Punjab, 1969 Cur LJ 625.

In another case the Disciplinary authority being a material witness in the

disciplinary proceeding was replaced by an ad hoc disciplinary authority but the

enquiry officer was appointed by the Original disciplinary authority. On the basis of

report of such enquiry officer and evidence led in the enquiry, the ad hoc disciplinary

authority passed order of removal from service. There was no material to indicate

prejudice caused to the employee as a result of such appointment and there was no

allegation of any bias or mala fides against the enquiry officer or presenting officer so

appointed in the conduct of enquiry. It was held that in absence of any prejudice or

allegations, order of disciplinary authority should not have been set aside and action of

disciplinary authority should not have been quashed only on a technical ground that the

appointment of Enquiry Officer was made by earlier Discplinary Authority. Assistant

Superintendent of Post Offices v. G. Mohan Nair, AIR 1999 SC 2113: 1999(1) SCC

183: 1998(6) SLR 783: 1999(2) LLJ 986: 1999 Lab IC 2349: 1999(3) LLN 420:

2000(84) FLR 91

32. Punishment with Retrospective Effect — Order imposing punishment of

dismissal can not be passed with retrospective effect. Punjab State Electricity Board v.

Gurpal Singh Bhamra, (1989) 3 SLR 19 (P&H) (S.S. Sodhi, J.). See also Dharam Veer

Sharma v. United Commercial Bank, 1997 (3) SLR 319 (P&H); Gurudas G. Priolkar v.

Union Bank of India, 1997 (5) SLR 157 (Bom) (DB); Subhashish Mukherji v. State of

Haryana, 1997 (5) SLR 746 (P&H); Satyendra Jeet Singh v. Union of India, ATR

(1986) 2 CAT 268.

An order of dismissal with retrospective effect is in substance an order of

dismissal as from the date of the order with the super added direction that the order

should operate retrospectively as from an anterior date. The two parts of the order are

clearly severable. Assuming that the second part of the order is invalid, there is no

reason why the first part of the order should not be given the fullest effect. The court

cannot pass a new order of dismissal, but surely it can give effect to the valid and

severable part of the order. R. Jeevaratnam v. State of Madras, (1966) II SCWR 464:


AIR 1966 SC 951: 1966(2) SCR 204: (1967) 1 SCJ 404: 1967 SLR 657. In Puran Singh

v. State of Punjab, 1982 (2) SLR 126, the dismissal was also quashed.

Order dated 17-10-1950 that appellant be dismissed from service w.e.f the date

of suspension, that is to say from 20-05-1949. In substance, this order directed that (1)

the appellant be dismissed, and (2) the dismissal do operate retrospectively as from

May 20, 1949. First part of the order is valid and second part in invalid. The invalidity

of the second part does not effect the first part of the order. Appellant lawfully

dismissed. Order of dismissal as from 17-10-1950 is valid and effective. R.

Jeevaratnam v. State of Madras, 1966(II) SCWR 464: AIR 1966 SC 951: 1966(2) SCR

204: 1967 SLR 657: 1967(14) FLR 285: 1967(1) LLJ 391: 1967(1) SCJ 404.

33. Punishment, Discrimination in Imposing of — Two Government servants

were convicted for the same offence arising not of the same incident. It was not open to

the disciplinary authority to allow one to join his duties and to remove the other from

service. Plea of hostile discrimination is well founded. Dost Mohammed v. Union of

India, 1981(3) SLR 274 AP. See also S.N. Singh v. Rajasthan Atomic Power Project,

1993(7) SLR 421 Raj (DB).

Delinquent with four other persons charged with beating and some of the

charges were proved but Disciplinary authority passed the order of dismissal of

delinquent but order of stoppage of five increments in respect of others. It is

undoubtedly open for the disciplinary authority to deal with the delinquency and once

charges are established to award appropriate punishment. But when the charges are

same and identical in relation to one and the same incident, then to deal with the

delinquents differently in the award of punishment, would be discriminatory. Held that

it was not open for the disciplinary authority to impose different punishments for

different delinquents for same charge. State of Uttar Pradesh v. Raj Pal Singh, 2001

Supp (1) JT 44: 2001(4) SLT 294.

Merely because one of the employees was wrongly given the lesser punishment

compared to others against whom there was a proved misconduct is not a ground that

they too should also be given the lesser punishment. Balbir Chand v. Food Corporation

of India Ltd., AIR 1997 SC 2229: 1996 Supp (10) SCR 156: 1997(3) SCC 371: 1997(2)

LLJ 879: 1997(77) FLR 267: 1997(3) LLN 82: 1998(79) FLR 494: 1997(1) SLR 756.

One of the delinquents granted back wages while passing the consequential

order for reinstatement while the other delinquent denied back wages on flimsy

grounds. Held that in the absence of very relevant and exceptional circumstances, the

consequential order should also be of similar import in both the cases therefore denial

of back wages by Tribunal is improper. Ramesh Chander v. Delhi Administration,

1996(10) SCC 409: 1996(3) SLJ 124: 1996(5) SLR 166: 1996(74) FLR 2235: 1997(3)

LLJ 509.

However in another case the court took a different view. Court Martial and

conviction due to involvement of delinquents in agitation became final. Thereafter in

proceedings under Rule 19 of C.C.S. Rules order of compulsory retirement passed.

Some other persons involved in agitation awarded lesser punishment. It was held that

Court ordinarily would not interfere with order on quantum of punishment once Court


comes to a conclusion that there has been no infirmity with procedure. Union of India v.

P. Chandra Mouli, 2001(3) SLT 205

34. Punishment, Consideration of by Court — (i) If the order of the

Government can be supported on any finding as to substantial misdemeanour for which

the punishment imposed can be lawfully imposed, it is not for the court to consider

whether that ground alone would have weighed with the authority dismissing the public

servant. State of Orissa v. Bidyabhusham, AIR 1963 SC 779: 1963 Sup(1) SCR 648:

1963(1) LLJ 239; State of U.P. v. Om Prakash Gupta, AIR 1970 SC 679: 1969(3) SCC

775: 1969 SLR 890: 1970 Lab IC 568: 1970(1) SCWR 139; Murlidhar Mishra v.

District Judge, Cuttack, 1977 SLJ 344.

(ii) The court is not concerned to decide whether the punishment imposed,

provided it is justified by rules, is appropriate by having regard to the misdemeanour

established. Union of India v. Sardar Bahadur, 1971(II) SCWR 712: 1972 SLR 355.

(iii) High Court cannot interfere with the order on the ground of severity of the

punishment in the absence of any statutory provisions barring cumulative punishment.

Sant Kumar Banerjee v. Collector, 1970 Lab IC 1641; Natarajan v. Divisional

Superintendent, Southern Railway, 1976(1) SLR 669: 1976 Lab IC 363.

(iv) Court has no business to interfere with punishment when justifiably

awarded. The quantum of punishment is also not a matter for the Court to look into. But

the position cannot be lost sight of that if without justification punishment be imposed,

security of service might be affected and ultimately the purpose of giving protection to

public officers would be lost. Purnachandra Dash v. State of Orissa, 1981(2) SLR 769.

(v) If the decision on the question of penalty is not right, just, fair and

reasonable and it is vitiated due to arbitrary exercise of the penal powers, the same

requires to be quashed and set aside. Bhim Singh Sardar Singh v. District Supdt. of

Police, 1982(2) SLR 629 Guj.

(vi) Quantum of punishment is the prerogative of the Disciplinary Authority.

No one else should be allowed to influence it. Advice of the Central Vigilance

Commission should not extent to the punishment to be meted out. N. Sunderamurthy v.

Lt. Governor, Pondicherry, 1990(6) SLR 212, 223, 224 para 4 (CAT Mad).

35. Order of Punishment, Whether should be in Standardised Form — The

form has been evolved in administrative instructions for the guidance of punishing

authorities and in not a part of the rules. Failure to use a prescribed form in passing an

order by itself does not nullify the order. Director of Postal Services v. Daya Nand,

1972 SLR 325.

Order had been issued in standard form by filling up the blanks. Order without

application of mind in a mechanical manner cannot be maintained. Order of punishment

should be a speaking order and if the punishing authority does not appear to apply its

mind to the material on record then it is vitiated. Union of India v. Raghubir Saran,

1982 Lab IC 1894.

36. Removal or Dismissal by an Authority Subordinate to that by which Civil Servant was Appointed if Void and Inoperative — Mysore State Road


Transport Corporation v. Mirza Khasim Ali Beg, AIR 1977 SC 747: 1977(2) SCC 457:

1977(1) LLJ 262: 1977 Lab IC 272: 1977(1) SLR 237; Babaji Charan Rout v. State of

Orissa, 1982(1) SLJ 496: 1982 Lab IC 603; Dinanath v. District Medical Officer,

1982(2) SLJ 691.

The penalty of removal from service cannot be imposed without recourse to

disciplinary proceedings. An employee cannot be removed or dismissed by an authority

other than by which he was appointed unless the appointing authority has made prior

delegation of such authority to such other person or authority in writing. Uttar Pradesh

Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753:

1999(1) SCC 741: 1999(1) CLT 134(SC): 1999(2) SLR 576: 1999(1) LLJ 633: 1999(1)

LLN 1081: 1999(3) SLJ 124 .

The power of appointment carries with it the power to dismiss, discharge,

remove an employee or to terminate his services in accordance with the conditions of

employment. Post Graduate Institute of Medical Education v. Sham Lal, 1974 SLJ 365:

1974 (2) SLR 814; Union of India v. Gurbaksh Singh, AIR 1975 SC 641: 1975(3) SCR

444: 1975(3) SCC 638: 1975 SLJ 554: 1975(1) SCJ 351.

In Moti Ram Deka v. General Manager, N.E.F. Railway, AIR 1964 SC 600:

1964(5) SCR 638, which is the leading case on the meaning of “dismissal” and

“removal”, it was held that rules cannot trespass upon or curtail the rights guaranteed

by Article 311 of the Constitution. Thus an authority subordinate to the appointing

authority cannot be authorised to dismiss a civil servant. Balak Das v. Astt. Security

Officer, AIR 1960 MP 183.



of the Office. As a result, the Head of Office, namely, the Assistant Manager is the

competent authority to appoint. Once he is the competent authority to appoint, he is

equally, the competent authority to impose the penalty. Himachal Road Transport

Corporation v. Kewal Krishan, AIR 1997 SC 2667: 1997 (9) SCC 39: 1997 (2) SLR

580: 1997 (76) FLR 233: 1997 (2) SCJ 172: 1997 Lab IC 2652: 1998 (1) LLJ 1058:

1998 (1) SLJ 44: 1998 (3) LLN 24. As regards competent authority to issue charge

sheet, see Government of Tamil Nadu v. S. Vel Raj, AIR 1997 SC 1900: 1997 (2) SCC

708: 1997 (1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3)

LLJ 1; Inspector General of Police v. Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC

145: 1996 (6) JT 450: 1996 SCC (L&S) 433: 1996 (32) ATC 663: 1996 (2) SLR 470:

1996 (1) UJ 424: 1996 (74) FLR 2510: 1996 (2) LLN 515: 1997 (2) LLJ 191.

Where the authorities which had appointed a civil servant to service or to the

grade or to a particular post are different for the purpose of the rule and therefore, for

Article 311 of the Constitution, the appointing authority would be the highest of the

three authorities. K.K. Mittal v. Union of India, 1974(2) SLR 602; Dharma Dev Mehta

v. Union of India, AIR 1980 SC 557: 1980(2) SCR 554: 1980(2) SCC 205: 1980 Lab IC

383: 1980(1) SLR 414.

However a person entrusted with the charge of the office is entitled to exercise

all executive powers, perform duties and discharge functions attached to those offices


including the power to impose penalty. Gopalji Khanna v. Allahabad Bank, AIR 1996

SC 1729: 1996(2) SCR 1068: 1996(3) SCC 538: 1996(2) SLR 315: 1996(1) BC 574:

1996 SCC(L&S) 766: 1996(1) LLN 806: 1996(2) LLJ 121.

37. Second Opportunity Rule not Applicable Even to Proceedings Initiated Prior to 1977 — The second opportunity rule in Article 311(2) stood prior to

Constitution Forty Second Amendment Act, 1976, which came into force w.e.f.

03-01-1977. Consequently, Rule 15(4) was amended w.e.f. 02-09-1978. These

amendments clearly imply that in respect pending disciplinary proceedings also the

intention was to do away with the second opportunity rule. Issac Joseph v. Senior

Supdt. of Post Offices, Ernakulam, 1982(2) SLR 269: 1983 Lab IC 145.

Where in a case Enquiry Officer holds a charge not proved and the disciplinary

authority holding it proved imposed penalty, claim put forth by the applicant that a

show cause should have been given before imposing penalty. It was held that no such

second cause is requirement of Rule 15(3). N. Mangayarkarasi v. Secretary to

Government (Welfare), Podicherry, 1988(1) SLJ 395 (CAT Mad).

The disciplinary authority has no jurisdiction to drop proceedings before

arriving at final stage of imposing of penalty. Bhagat Singh v. Union of India, 1994(7)

SLR 743 (CAT Cal).

PROCEDURE FOR IMPOSING MINOR PENALTIES R. 16

16. Procedure for imposing minor penalties — (1) Subject to the

provisions of sub-rule (3) of Rule 15, no order imposing on a

Government servant any of the penalties specified in clauses (i) to (iv)

of Rule 11 shall be made except after—

(a) informing the Government servant in writing of the

proposal to take action against him and of the imputations

of misconduct or misbehaviour on which it is proposed to

be taken, and giving him reasonable opportunity of making

such representation as he may wish to make against the

proposal;

(b) holding an inquiry in the manner laid down in sub-rules

(3) to (23) of Rule 14, in every case in which the

disciplinary authority is of the opinion that such inquiry is

necessary;

(c) taking the representation, if any, submitted by the

Government servant under clause (a) and the record of

inquiry, if any, held under clause (b) into consideration;


(d) recording a finding on each imputation of misconduct or

misbehaviour; and

(e) consulting the Commission where such consultation is

necessary.

(1-A) Notwithstanding anything contained in clause (b) of sub-rule

(1), if in a case it is proposed after considering the representation, if

any, made by the Government servant under clause (a) of that sub-rule,

to withhold increments of pay and such withholding of increments is

likely to affect adversely the amount of pension payable to the

Government servant or to withhold increments of pay for a period

exceeding three years or to withhold increments of pay with cumulative

effect for any period, an inquiry shall be held in the manner laid down in

sub-rules (3) to (23) of Rule 14, before making any order imposing on

the Government servant any such penalty.

(2) The record of the proceedings in such cases shall include—

(i) a copy of the intimation to the Government servant of the

proposal to take action against him;

(ii) a copy of the statement of imputations of misconduct or

misbehaviour delivered to him;

(iii) his representation, if any;

(iv) the evidence produced during the enquiry;

(v) the advice of the Commission, if any;

(vi) the findings on each imputation of misconduct or

misbehaviour; and

(vii) the orders on the case together with the reasons therefore.

COMMENTARY

S Y N O P S I S

Sub-rule (1)

1. Requirements of the rule. ............................................................................................... 401

2. Charge-sheet under Rule 14 - On receipt of reply, minor penalty can be imposed

without following procedure under rule 14 .................................................................... 401

3. Penalty of censure .......................................................................................................... 402

4. Delinquent only entitled to opportunity to make a representation .................................. 402


5. Effective opportunity of meeting allegations be given by information allegations

against him ..................................................................................................................... 402

6. Application of principle of natural justice ...................................................................... 402

7. Inviting comments on representation made by delinquent officer .................................. 403

8. Civil servant”s right of access to preliminary enquiry report in proceedings other than

those involving major penalties ...................................................................................... 403

9. Enhancement of punishment, opportunity to defend be given ........................................ 403

10. Mention of proposed punishment in show cause notice ................................................. 404

11. Withholding of promotion, procedure be followed ........................................................ 404

12. Recovery of loss caused by negligence from pay ........................................................... 404

Sub-rule (1)(b)

13. Disciplinary authority to give reasoned finding whether an enquiry is or is not

necessary ........................................................................................................................ 404

14. If disciplinary authority decides to hold enquiry ............................................................ 405

Sub-rule (1)(d)

15. Order should be speaking order ...................................................................................... 405

16. Order should contain reasons for imposing penalty ....................................................... 406

Sub-rule 16(1-A)

17. Admissions of delinquent officer during enquiry ........................................................... 406

18. Penalty under Rule 16(1-A) only after following prescribed procedure . ....................... 406

Sub-rule (1)(a)

1. Requirements of the Rule — (i) Rule 16 provides for the procedure where

minor penalty is to be imposed. The rule requires the Government to inform the official

of the proposal to take action against him and give him a reasonable opportunity of

making such representation as he may wish to make against the proposal. Holding of

enquiry is not mandatory but is in the discretion of the disciplinary authority who may

if necessary hold one. I.D. Gupta v. Delhi Administration, 1973(2) SLR 1. See also Kul

Bhusan Madan v. Union of India, 1994(7) SLR 55 (CAT, New Delhi).

(ii) The only requirement is that officer concerned should be given an adequate

opportunity of making representation that he may desire to make. There is no provision

for examination of witnesses, cross-examination of witnesses and furnishing a copy of

report. The punishment can therefore be imposed after the charge-sheet had been served

on the officer and he had made his representation, if the disciplinary authority considers

that holding an enquiry is not necessary. Shadi Lal Gupta v. State of Punjab, 1973(1)

SCWR 329: AIR 1973 SC 1124: 1973(3) SCR 637: 1973(1) SCC 680: 1973 SLJ 478.

2. Charge-sheet under Rule 14: On receipt of Reply, Minor Penalty can be Imposed without Following Procedure of Rule 14 — If in the first instance a

memorandum is given under Rule 14 and on receipt of reply by the delinquent the


authority is of the view that only a minor penalty was called for, the authority can

impose the minor penalty without going through the whole procedure of elaborate

enquiry under Rule 14. I.D. Gupta v. Delhi Administration, 1973(2) SLR 1. See also

K.P. Agarwal v. Union of India, 1994(7) SLR 713 (CAT Jaipur).

Even in case of a minor penalty an opportunity has to be given to delinquent

employee to have his say or to file his explanation with respect to charges against him.

Moreover, if charges are factual and if they are denied by delinquent employee, an

enquiry is called for. This is the minimum requirement of the principle of natural justice

which cannot be dispensed with. O.K. Bhardwaj v. Union of India, 2001(9) SCC 180.

3. Penalty of censure— Penalty of censure cannot be equated with a warning

but is one of the minor penalties. State of Madhya Pradesh v. I.A. Qureshi, 1998(9)

SCC 261.

4. Delinquent Only Entitled to Opportunity to Make a Representation — It

is true that the requirement of a reasonable opportunity of making representation

against the proposed imposition of a minor penalty includes an opportunity both against

the alleged guilt and also the quantum of punishment and that it has to be real. This,

does not, however, mean that an elaborate enquiry is to be held. All that is required is

that the delinquent officer must know the case which he has to meet including the

details of the material or evidence on which the case against him is based. It is only an

opportunity to make a representation and not that the delinquent officer is entitled to get

witnesses summoned, cross-examine them and then except a finding. B.D.Gupta v.

State of Haryana, 1970 Lab IC 170; Kalyan Singh v. State of Punjab, 1967 SLR 129.

5. Effective Opportunity of Meeting Allegations be Given by Informing

Allegations Against Him — No doubt, it is not necessary to hold a departmental

enquiry for imposing on a Government servant the punishment of withholding an

increment. But he is clearly entitled to an effective opportunity of making the

allegations on which it is proposed to withhold his increment. Merely giving a notice to

the Government servant saying he is guilty of certain lapse or misconduct and asking

him to show cause against the punishment of withholding increments is not sufficient.

He must be informed of the allegations against him and the material on which they are

based. Lal Audhraj Singh v. State of M.P., 1968 SLR 88: AIR 1967 MP 284.

6. Application of Principles of Natural Justice — Petitioner was asked to

show cause why disciplinary action be not taken against him for being duly intoxicated

near the Bus Station at midnight and behaving in a disorderly manner under the

influence of liquor. He submitted his explanation denying the charges and how he was

manhandled by the Police Officer. The appointing authority without any further enquiry

into the charges barred his increments for three years with cumulative effect.

Government rejected his appeal. Held, the orders cast a stigma on his character. In the

circumstances of the facts of the case, the impugned orders are in violation of principles

of natural justice and cannot be sustained. C. Ramankutty Warrier v. State of Kerala,

1983(1) SLJ 1.

A charge-sheet was filed for misconduct and negligence. Copies of statements

relied upon by the Department were not supplied. No opportunity was given to cross-


examine the witnesses. Punishment of withholding of increments for two years was

awarded. It was held that, though regular inquiry under Rule 14(3) to 14(23) CCS

(CC&A) Rules are not mandatory for minor penalty, yet a finding of guilt can be

arrived at only after an inquiry. Finding was set aside. Joseph Thomas v. Chairman,

Posts & Telegraphs, New Delhi, 1989(5) SLR 362 Delhi.

Where a minor punishment is imposed, the procedure for holding an enquiry

need not be followed unless otherwise desired by the disciplinary authority. But surely

it does not mean that the enquiry is wholly barred or that it is entirely subject to the

pleasure of the disciplinary authority. … ….The duty to give satisfactory reasons for

coming to a decision is a duty of importance which cannot be lawfully disregarded. G.

Sundaram v. General Manager, Disciplinary Authority, Canara Bank, 1999(1) SLR 92

Karnataka.

If the disciplinary authority gives reasons for disagreeing with the findings of

enquiring officer then the Court cannot interfere with those findings unless it comes to

the conclusion that no reasonable man can come to the said finding. Held that there is

no force in the submission of the learned counsel appearing for the delinquent

government servant that before the disciplinary authority proceeds to award

punishment, the delinquent government servant should have been afforded a further

opportunity of hearing. Held further that charges having been framed and the delinquent

government servant having filed his show cause to the set of charges, the regular

enquiry having been held and the enquiring officer having recorded his findings and

thereafter the disciplinary authority having disagreed with the findings by recording the

reasons therefore and ultimately awarding minor punishment of stoppage of one

increment without cumulative effect, there is no procedural irregularity therein nor can

it be said that there has been any violation of principle of natural justice. State of

Rajasthan v. M.C. Saxena, 1998(3) SCC 385: AIR 1998 SC 1150: 1998(1) SLR 787:

1998(1) LLJ 1244: 1998(79) FLR 140: 1998(3) SLJ 10: 1998 Lab IC 1038: 1998(93)

FJR 582: 2000(1) LLN 35.

7. Inviting Comments on Representation made by Delinquent Officer — When an explanation is received its consideration is a matter solely for the authority

competent to take action. He should not allow his decision to be influenced by any

other person by inviting comments on the explanation. M.L.Gera v. Chief Engineer,

1973(1) SLR 1076: AIR 1973 Punjab 287.

8. Civil Servant”s Right of Access to Preliminary Enquiry Report in

Proceedings Other Than those Involving Major Penalties — A civil servant in

disciplinary proceedings other than those involving the major penalties of dismissal,

removal or reduction in rank is not entitled to be supplied with the copy of the report or

the substance of the adverse findings and the material on which they are based to which

reference was made by the punishing authority to ascertain the facts in order to decide

whether it was a fit case for taking any action and, if so, what action against the officer.

Malvinder Jit Singh v. State of Punjab, 1970 SLR 660 (FB).

9. Enhancement of Punishment, Opportunity to Defend be Given — Petitioner was awarded of reduction in pay by three stages for three years. After

sometime, a clarification was issued that the reduction of pay will have the effect to


postpone the future increments. Held, since another punishment in an enhanced form

was imposed, the petitioner was entitled to the protection under Article 311(2) of the

Constitution and since he has been denied of an opportunity to defend himself against

the punishment, the order was quashed. G.S. George v. Government of Andhra Pradesh,

1968 SLR 603: AIR 1968 AP 153.

10. Mention of Proposed Punishment in Show Cause Notice — Rule covers

several kinds of minor punishments and it was improper on the part of punishing

authority to have the case decided before the receipt of explanation as to what

punishment was going to be imposed. M.L Gera v. Chief Engineer, 1973(1) SLR 1076:

AIR 1973 Punjab 287.

11. Withholding of Promotion, Procedure be Followed — A punishment by

way of withholding of promotion shall not be imposed unless the officer has been given

adequate opportunity of showing cause against the action proposed to be taken. In such

disciplinary proceedings the Government servant has a right to insist upon the

procedure being strictly followed. High Court of Calcutta v. Amal Kumar Roy, AIR

1962 SC 1704: 1963(1) SCR 437.

12. Recovery of Loss Caused by Negligence from Pay — In view of the

losses sustained by the Government due to petitioner”s negligence, his two months

salary was credited to Government revenue to make good a portion of the loss due to

thefts. Held, it is punishment which could not be inflicted in disregard of the protection

afforded by Article 311(2). Babulal Mekulal v. Principle Govt. Engineering College,

Jabalpur, AIR 1960 MP 294. However recovery as per covenant in service contract can

be made. State of Kerala v. M.C. Joseph, 1975 SLJ 605. See also Kul Bhusan Madan v.

Union of India, 1994(7) SLR 55 (CAT New Delhi).

Recovery of loss from delinquent after disciplinary proceeding and dismissal

from service. Appeal dismissed by Appellate Authority by non-speaking order. Order

of Appellate Authority set aside and remanded for reconsideration. S. Ramanathan v.

Chief Judicial Magistrate, 2001(5) JT 494: 2001(4) SLT 473.

As punishment for charges of misappropriation and negligence, disciplinary

authority directed the stoppage of increments for two years without cumulative effect

and suspension pending enquiry was directed to be treated as service without pay and

the loss caused was also ordered to be recovered from the employee. Held that the

Tribunal had no jurisdiction to interfere with the punishment imposed by the

disciplinary authority as order for recovery of loss caused on account of employee”s

negligence and misconduct which was permissible under Tamil Nadu Civil Services

(Classification, Control and Appeal) Rules. Commissioner of Rural Development v. A.S.

Jagannathan, AIR 1999 SC 3368: 1999(2) SCC 313: 1999(1) LLJ 1083: 1999 Lab IC

2617.

Sub-rule (1)(b)

13. Disciplinary Authority to Give Reasoned Finding Whether an Enquiry

is or is not Necessary — There can be no manner of doubt that where a minor

punishment is sought to be imposed, the procedure of holding an enquiry need not be

followed, unless otherwise desired by the disciplinary authority. But surely it does not


mean that the enquiry is barred or that it is entirely subject to the pleasure of the

disciplinary authority. The clause speaks of the opinion that such enquiry is necessary

implying that the disciplinary authority must apply its mind to the facts and

circumstances of the case as disclosed in the representation of the employee and other

available material and give a reasoned finding whether an enquiry is or is not necessary.

In the absence of such finding, an order imposing the penalty would be invalid and of

no legal consequences unless, of course, it can show that the omission has not resulted

in any material prejudice to the employee. For, cases are conceivable where without the

requisite opinion being there, clause (b) has been substantially complied with. Mansa

Ram v. General Manager, Telecommunications, 1980 SLJ 382: 1980(3) SLR 520.

Since reasons are the links between the materials on which certain conclusions

are based and the actual conclusions and they disclose how the minds is applied to the

subject matter and it excludes the chances to reach arbitrary, whimsical or capricious

decision. It also aids the appellate or revisional authority or the supervisory jurisdiction

of this Court under Article 226 of the Constitution to see whether the authority

concerned acted fairly and justly to meet out justice to the aggrieved person. G.

Sundaram v. General Manager, Disciplinary Authority, Canara Bank, 1999(1) SLR 92

Karnataka.

No doubt, Rule 16(1)(b) confers a discretion on the disciplinary authority to

hold an inquiry. But where the Government servant himself insists on inquiry to

establish his innocence, rejection of his request is not justified. C.G. Jayadev v.

Rajagopalan, 1988(8) ATC 17 (CAT Madras).

The Central Administrative Tribunal, Banglore in Murugesan v. Collector of

Customs, 1991(15) ATC 931 has held, that if the employee makes a request for

departmental enquiry, the same should not be unreasonably rejected.

Where delinquent makes a written representation for oral inquiry and

opportunity to cross-examine, the request be summarily rejected. D.J.J. Bethel Raj v.

Sub-Divisional Officer, Telegraphs, 1989(1) SLR 639 (CAT Madras).

14. If Disciplinary Authority Decides to Hold Inquiry — If the disciplinary

authority is of opinion that enquiry under sub-rules (3) to (23) of Rule is necessary, the

procedure laid down therein has to be allowed while initiating the proceedings under

Rule 14 for major penalty. Even if a minor penalty is ultimately imposed, the officer

can complain about violation of the procedure laid down under Rule 14. Piyar

Mohammad Talukdar v. Senior Superintendent of Post Offices, 1974(1) SLR 162 Gau.

Sub-rule (1)(d)

15. Order should be a Speaking Order — The order should be a speaking

order so that the employee concerned may know the process of reasoning that led to the

penal action. M.L. Gera v. Chief Engineer, 1973(1) SLR 1076: AIR 1973 Punjab 287;

Harchand Singh v. State of Punjab, 1980(3) SLR 711. It is well settled that in

departmental proceedings, the order of punishment is an order in the nature of quasi

judicial proceedings and it has to be a speaking order. If certain explanation is


furnished by the delinquent officer in reply, the same has to be met with by passing a

speaking order. Deep Chand Sharma v. State of Haryana, 1981(3) SLR 188.

16. Order should Contain Reasons for Imposing Penalty — A penalty can

be imposed upon members of the services only if good and sufficient reasons are

shown. The existence of good and sufficient reasons can only be found out from the

reading of the orders which admittedly do not exist in this case. Order set aside. Ram

Das Chaudhary v. State of Punjab, 1968 SLR 792; Dr. B.K. Talwar v. State of

Haryana, 1970 SLR 732: 1970 Cur LJ 579; State of Punjab v. Dr. Ram Kishan Chopra,

1977(2) SLR 809.

Sub-rule 16(1-A)

17. Admission of Delinquent Officer during Enquiry — If the admissions are

to be taken to be correct, then the admission should be taken as a whole and not only

the parts thereof which are favourable to the prosecution. Satya Prakash Varshney v.

Union of India, 1980(3) SLR 64.

18. Penalty under Rule 16(1-A) only After Following Prescribed Procedure — Any of the penalties mentioned in Rule 16(1-A) can be imposed only after following

the procedure laid down in sub-rules (3) to (23) of Rule 14. Satya Prakash Varshney v.

Union of India, 1980(3) SLR 64. See also K. Gandhi v. Union of India, 1994(3) SLR

628 (CAT Madras).

R. 17

COMMUNICATION OF ORDERS

17. ¹[Communication of Orders — Orders made by the

disciplinary authority shall be communicated to the Government servant

who shall also be supplied with a copy of its findings on each article of

charge, or where the disciplinary authority is not the inquiring authority,

a statement of the findings of the disciplinary authority together with

brief reasons for its disagreement, if any, with the findings of the

inquiry authority and also a copy of the advice, if any, given by the

Commission, and where the disciplinary authority has not accepted the

advice of the Commission, a brief statement of the reasons for such non-

acceptance.]

COMMENTARY

S Y N O P S I S

1. “Communicated”, meaning of . ...................................................................................... 407

2. Detailed order not supplied to delinquent officer but only its operational portion ........ 407

3. Necessity of communication .......................................................................................... 407

4. Order when becomes effective ....................................................................................... 407


1. “Communicated”, Meaning of — Once an order other than that of

dismissal is issued and it is sent out to the concerned Government servant, it must be

held to have been communicated to him, no matter when he actually received it. State of

Punjab v. Khemi Ram, 1969(II) SCWR 718: AIR 1970 SC 214: 1970(2) SCR 657:

1969(3) SCC 28: 1970 Lab IC 271: 1970(21) FLR 138: 1971(1) SCJ 263: 1969 SLR

833; State of Punjab v. Balbir Singh, 1976(1) SLR 36.

2. Detailed Order not Supplied to Delinquent Officer but Only its

Operational Portion — The disciplinary authority passed a reasoned order on the file

but did not communicate that reasoned order to the petitioner. Instead thereof a cryptic

order was issued to him which did not comply with the requirements quasi judicial

order. The order was quashed and the disciplinary authority was directed to pass

another order and communicate it to the petitioner. H.K. Khanna v. Union of India,

1971(1) SLR 618. A Division Bench in Dayawanti v. State of Punjab, 1982 Lab IC 496:

1982(1) SLR 244 overruled the decision in H.K. Khanna v. Union of India, 1971(1)

SLR 618 and held that no principle of natural justice requires the Govt. to necessarily

supply the detailed order to the delinquent officer nor the non-supply of the detailed

order can render the order void or invalid. Rule 17 was not considered in these

decisions. In enquiries conducted under the CCS (CCA) Rules, 1965, the provisions

contained in Rule 17 must be followed.

3. Necessity of communication— Where the services are terminated, the status

of the delinquent, as a Government servant, comes to an end and nothing further

remains to be done in the matter. But if the order is passed and merely kept in the file,

it would not be treated to be an order terminating services nor shall the said order be

deemed to have been communicated. Union of India v. Dinanath Shantaram Karekar,

1998(7) SCC 569: AIR 1998 SC 2722: 1999(1) SLJ 180: 1998(80) FLR 446: 1998(2)

LLJ 748: 1998 Lab IC 3021: 1998(4) LLN 14: 1999(94) FJR 10.

4. Order when Becomes Effective — Order of termination of employment

does not become effective until it is intimated to the employee or is otherwise

published. State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313: 1966(2) LLJ 188:

1966(II) SCWR 710: 1966(2) SCJ 777; Raj Kumar v. Union of India, 1968(II) SCWR

914: 1968 DLT 551: 1968 SLR 745; State of Punjab v. Balbir Singh, 1976(2) SCR 115:

1976(3) SCC 242: AIR 1977 SC 629: 1976(1) SLR 36: 1977 Lab IC 281: 1976(2) LLJ

4: 1976 SLJ 278.

A distinction has been made regarding the points of time when an order of

dismissal and an order of reversion or suspension becomes effective. In the case of an

order of reversion or suspension, when it goes out of the control of the authority

concerned, that is to say, when it is despatched to the Government servant either by

post or by messenger. This principle is not, however, applicable in the case of an order

of dismissal. When an order of dismissal or removal from service is sent out, it is

effective on the authority concerned, but so far as the Government servant is concerned,

it becomes effective only when he is apprised of it either by oral communication or by

actual service of it upon him. Umashankar Chatterjee v. Union of India, 1982(2) SLJ

368: 1982 SLR 724: 1982 Lab IC 1361.


Mere passing of the order of dismissal would not make it effective unless it was

published and communicated to the concerned officer. State of Punjab v. Amar Singh

Harika, AIR 1966 SC 1313: (1966) 2 SCJ 777: 1966(2) LLJ 188; Rama Kant Banik v.

District School Board, AIR 1969 Calcutta 397; Bansidhar Panigrahi v. State of Orissa,

1975 SLJ 150: 1975 (2) SLR 725: 1975 Lab IC 932.

When an order of dismissal or removal from service is sent out, it is effective

on the authority concerned, but so far as the Government servant is concerned, it

becomes effective only when he is apprised of it either by oral communication or by

actual service of it upon him. Umashankar Chatterjee v. Union of India, 1982 (2) SLJ

368: 1982 (2) SLR 724.

Where order of termination is passed by the appointing authority, its

communication by any other authority would not render it bad in law. Union of India v.

Sumitra Devi, 2000 (2) SLR 403 SC.

COMMON PROCEEDINGS R. 18

18. Common Proceedings — (1) Where two or more

Government servants are concerned in any case, the President or any

other authority competent to impose the penalty of dismissal from

service on all such Government servants may make an order directing

that disciplinary action against all of them may be taken in a common

proceeding.

Note — If the authorities competent to impose the penalty of

dismissal on such Government servant are different, an order for taking

disciplinary action in a common proceeding may be made by the highest

of such authorities with the consent of others.

(2) Subject to the provisions of sub-rule (4) of Rule 12, any such

order shall specify—

(i) the authority which may function as the disciplinary

authority for the purpose of such common proceeding;

(ii) the penalties specified in Rule 11 which such disciplinary

authority shall be competent to impose;

(iii) whether the procedure laid down in Rule 14 and Rule 15

or Rule 16 shall be followed in the proceeding.


COMMENTARY

S Y N O P S I S

1. Common proceedings without sanction . ....................................................................... 409

2. Necessity of common proceedings ................................................................................. 409

3. Order for common proceedings not passed by highest of the authorities ...................... 409

4. Appointment of disciplinary authority ........................................................................... 410

5. Joint enquiry - Objection to ........................................................................................... 410

6. Information for common proceeding but enquiry conducted separately ....................... 410

1. Common Proceedings Without Sanction — Joint and/or common trial

cannot be held without sanctioned referred to in the rule. Tripura Charan Chatterjee v.

State of West Bengal, 1979(1) SLR 878. See also K.B. Narayanachari v. Vice President,

Council of Scientific and Industrial Research, 1993(8) SLR 634 (CAT Hyderabad).

2. Necessity of common proceedings — It is always necessary and salutary

that common enquiry should be conducted against all the delinquent officers to avoid

multiplicity of proceedings, needless delay from conducting the same and overlapping

abduction of evidence or omission thereof and conflict of decision in that behalf. Balbir

Chand v. Food Corporation of India Ltd., AIR 1997 SC 2229: 1996 Supp (10) SCR

156: 1997(3) SCC 371: 1997(1) SLJ 156: 1997(2) LLJ 879: 1997(77) FLR 267: 1997(3)

LLN 82: 1998(79) FLR 494: 1997(1) SLR 756.

In the aforesaid case it has been further held that enquiry should normally be

not split even on the request of the delinquents. It was observed “If one charged officer

cites another charged officer as a witness, in proof of his defence, the enquiry need not

per se be split up even when the charged officers would like to claim an independent

enquiry in the behalf. If that procedure is adopted, normally all the delinquents would

be prone to seek split up of proceedings in their/his bid to delay the proceedings, and to

see that there is conflict of decisions taken at different levels. Obviously, disciplinary

enquiry should not be equated as a prosecution for an offence in a criminal Court where

the delinquents are arrayed as co-accused. In disciplinary proceedings, the concept of

co-accused does not arise. Therefore, each of the delinquents would be entitled to

summon the other person and examine on his behalf as a defence witness in enquiry or

summon to cross-examine any other delinquent officer if he finds him to be hostile and

have his version placed on record for consideration by the disciplinary authority. Under

these circumstances, the need to split up the cases is obviously redundant, time

consuming and dilatory.”

3. Order for Common Proceedings not passed by Highest of the Authorities

— Police Sub-Inspector and Head Constable were charged for misconduct. Disciplinary

proceedings followed. There was joinder of inquiries and the two police officers were

dismissed from the service. The Police Sub-Inspector had been appointed by I.G.P. and

the Head Constable by Lt. Governor. Order directing that disciplinary action against

both the police officers be carried out in a common proceeding was passed by I.G.P.,


and not by Lt. Governor. Enquiry Officer has acted without jurisdiction when he took

up common proceedings. Entire proceeding is vitiated and is therefore liable to be

quashed. Ashok Y. Naik v. Administrator of Goa, 1979 SLJ 84: 1978(2) SLR 679.

4. Appointment of Disciplinary Authority — Where appointing authorities

are different of civil servants about whom a joint enquiry is ordered, the Government is

to specify as to who shall be the disciplinary authority for the common purposes of

making the joint enquiry. Krishan Lal Godara v. State of Rajasthan, 1969 SLR 666.

5. Joint Enquiry: Objection to — If a charged officer does not want a joint

trial along with other persons he should take that objection before the Enquiry

Officer/Tribunal. A joint trial of more than one charged officer cannot be held to be bad

unless it is shown that some prejudice was caused to the charged person by virtue of the

joint trial. R. Narasimha Reddy v. State of A.P., 1975(1) SLR 315. See also K.B.

Narayanachari v. Vice President, Council of Scientific and Industrial Research,

1993(8) SLR 634 (CAT Hyderabad).

Where there is inherent lack of jurisdiction to hold joint enquiry, no amount of

acquiescence or consent of parties can confer jurisdiction. Tripura Charan Chatterjee v.

State of West Bengal, 1979(12) SLR 878.

6. Information for Common Proceeding but Enquiry Conducted Separately

— Despite the intimation given to applicant for conducting common proceeding enquiry

done separately, it was held that purpose behind it was to give better opportunity and

there was no violation of natural justice. B.C. Rangarajan v. General Manager,

Ordinance Factory, 1988(1) SLJ 521 (CAT) (SN) (Mad).

SPECIAL PROCEDURE IN CERTAIN CASES R. 19

19. Special procedure in certain cases — Notwithstanding

anything contained in Rule 14 to Rule 18 —

(i) where any penalty is imposed on a Government servant on

the ground of conduct which has led to his conviction on a

criminal charge, or

(ii) where the disciplinary enquiry is satisfied for reasons to be

recorded by it in writing that it is not reasonably

practicable to hold an inquiry in the manner provided in

these rules, or

(iii) where the President is satisfied that in the interest of the

security of the State, it is not expedient to hold any inquiry

in the manner provided in these rules, the disciplinary


authority may consider the circumstances of the case and

make such orders thereon as it deems fit:

1[Provided that the Govt. servant may be given an opportunity of

making representation on the penalty proposed to be imposed before any

order is made in a case under clause (i):

Provided further that the Commission shall be consulted, where

such consultation is necessary, before any orders are made in any case

under this rule].

COMMENTARY

S Y N O P S I S

1. Penalty without inquiry or show cause in certain cases . ................................................ 412

Clause (i)

2. Conviction on criminal charge - Meaning of ................................................................. 413

3. Pendency of appeal against conviction ........................................................................... 414

4. Conviction on a criminal charge - Imposing of penalty ................................................. 414

5. Application of ............................................................................................................... 414

6. Predetermination of penalty ........................................................................................... 417

7. Delay in initiating proceedings ....................................................................................... 417

8. Reference to conduct leading to conviction.................................................................... 417

9. Conviction for conduct not in course of employment .................................................... 417

10. Probation of Offenders Act - Effect of benefit under Section 12 ................................... 418

11. Probation of Offenders Act - Objects of Sections 4 & 12 .............................................. 419

12. Power of appellate criminal court................................................................................... 420

13. Suspension of sentence................................................................................................... 420

14. Set aside of conviction ................................................................................................... 420

15. Effect of acquittal ........................................................................................................... 421

16. Back wages .................................................................................................................... 422

17. Fresh departmental enquiry - Whether necessary ........................................................... 422

18. Natural Justice - Violation of ......................................................................................... 422

19. Combined effect of Rule 10(2)(b) and Rule 19(i) .......................................................... 423

Clause (ii)

20. Dispensing with enquiry ................................................................................................. 423

1 Proviso substituted by S.O.No. 830 dated 28-03-1987 vide Notification No.

11012/13/86-Estt. (A), dated 11-03-1987.


21. Not reasonably practicable to hold an inquiry in the manner provided in these rules -

Meaning of .................................................................................................................... 424

22. Ambit of consideration by the disciplinary authority - Associating of employee ........... 424

23. Whether the conclusion of disciplinary authority open to challenge .............................. 425

24. Whether reasons are to be communicated to the employee ............................................ 427

25. Whether rule authorises to altogether dispense with an enquiry..................................... 427

26. Natural justice and dispensation of enquiry.................................................................... 428

Clause (iii)

27. Interest of of security of State not to suffer on unsubstantial or hyper technical

grounds .......................................................................................................................... 428

28. President/Governor can dispense with enquiry if in the interest of security of State - It

is not expedient to hold it ............................................................................................... 428

29. Satisfaction of President or Governor need not be personal .......................................... 428

30. Satisfaction of the President or Governor is subjective .................................................. 429

31. Termination of service in interest of security of State under Article 310 - Order to

recite President”s satisfaction ......................................................................................... 429

32. Decision of Governor or President that in the interest of the security of State, it is not

expedient to hold an inquiry - Judicial review of .......................................................... 429

33. Decision of review petition before the Supreme Court cannot stand in way of

reinstatement .................................................................................................................. 430

34. Non-consultation with Public Service Commission ....................................................... 430

1. Penalty without Inquiry or Show Cause in Certain Cases — President has

made the present Rules under Article 309 of the Constitution and has provided that no

order imposing any of the penalties specified in clause (v) to (ix) of Rule 11 shall be

made except after an inquiry held, as far as may be, in accordance with Rules 14 and 15

or in the manner provided by the Public Servants (Inquiries) Act, 1850. Procedure for

imposing minor penalties specified in clauses (i) to (iv) of Rule 11 has been provided in

Rule 16 Rule 19 provides that Rules 14 to 18 shall not apply in the circumstances and to

the cases mentioned in clauses (i), (ii) and (iii), Rule 19 has therefore, been made to

give effect to the Second Proviso to Article 311(2).

Article 311 of the Constitution reads:—.

Dismissal, removal or reduction in rank of persons employed in civil capacities

under the Union or a State — (1) No person who is a member a civil service of the

Union or an all India service or a civil service of a State or holds a civil post under the

Union or a State shall be dismissed or removed by an authority subordinate to that by

which he was appointed.


1[(2) No such person as aforesaid shall be dismissed or removed or reduced in


and given a reasonable opportunity of being heard in respect of those charges 2[* * *]:.

3[Provided that where it is proposed after such inquiry, to impose upon him any



making representation on the penalty proposed:.

Provided further that this clause shall not apply—.



charge; or.

(b) where the authority empowered to dismiss or remove a person or

to reduce him in rank is satisfied that for some reason, to be

recorded by that authority in writing, it is not reasonably

practicable to hold such inquiry; or.

(c) where the President or the Governor, as the case may be, is

satisfied that in the interest of the security of the State it is not

expedient to hold such inquiry.




in rank shall be final.].

Case law on clauses (i), (ii) and (iii) of Rule 19 is given in the notes which follow:

Clause (i)

2. Conviction on Criminal Charge: Meaning of — Conviction on a criminal

charge includes conviction under any law which provides for punishment for an

offence, whether by fine or imprisonment and that no distinction is made by this clause

between crimes involving moral turpitude or other crimes. Sunil Kumar Ghosh v. State

of West Bengal, AIR 1970 Cal 384: 73 Cal WN 627: 1970(1) LLJ 588: 1970 Cri LJ

1225: 1970 Lab IC 1243. [Case Law discussed].

It has been held, with reference to Rule 19, that if the employee is acquitted in

the criminal case on appeal, the disciplinary authority cannot, after the acquittal, reopen

the inquiry. P.P. Kuttuppan v. Senior Superintendent of RMS, 1990(3) SLR 561 (CAT

Ernakulam). See also D.V. Varma v. Superintending Engineer, Hyderabad, Central

Circle, CPWD, 1994(2) SLR 479 (CAT Hyderabad).

1 Substituted by the Constitution (Fifteenth Amendment) Act, 1963, Section 10, for

clause (2) and (3). 2 Certain words omitted by the Constitution (Forty second Amedment) Act, 1976,

Section 44, w.e.f. 03-01-1977. 3 Subtituted by Section 44, ibid., for certain words (w.e.f. 03-01-1977)


3. Pendency of appeal againt conviction — Appeal against conviction, still

pending. Held that the order of dismissal could be passed on the conduct of government

servant leading to his conviction on a criminal charge even though an appeal against the

conviction and sentence is pending in a court but if government servant acquitted in

appeal filed by him, he can move the authorities for review of the order of dismissal as

per law. Union of India v. V. K. Bhaskar, 1997(11) SCC 383: 1998(9) JT 301: 2000(84)

FLR 879, See also State of West Bengal v. Hari Ramalu, 2000(4) SLR 91 Cal; N.

Panduranga Rao v. Central Bank of India, Hydrabad, 1999 (8) SLR 122 AP.

4. Conviction on a Criminal Charge: Imposing of Penalty — Article 311(2)

of the Constitution lays down that no person who holds a civil post shall be dismissed

or removed or reduced in rank except after inquiry. Proviso (a) to Article 311(2),

however, completely dispenses with the departmental enquiry when an employee is

convicted on a criminal charge. The founders of the Constitution thought that where

once a delinquent employee has been convicted of a criminal offence, that should be

treated as a sufficient proof of his misconduct and the disciplinary authority may be

given the discretion to impose the penalties referred to in Article 311(2), namely,

dismissal, removal or reduction in rank. Proviso (a) to Article 311(2) is merely en

enabling provisions and it does not enjoin or confer a mandatory duty on the

disciplinary authority to pass an order of dismissal, removal or reduction in rank the

moment an employee is convicted. This matter is left completely to the discretion of the

disciplinary authority and the only reservation made is that departmental inquiry

contemplated by this provision as also by the Department Rules is dispensed with. In

these circumstances, Rule 14(i) of the Railway Servants (Discipline and Appeal) Rules,

1968, [which is similar to Rule 19(i) of Central Civil Services (Classification, Control

& Appeal) Rules, 1965] only incorporated the principles enshrined in proviso (a) to

Article 311(2) of the Constitution.

5. Application of — If any penalty is imposed on a Government servant on his

conviction in a criminal charge, the disciplinary authority can make such order as it

deems fit (dismissal from service is one such order contemplated under Rule 19) on

initiating disciplinary proceedings and after giving the delinquent officer an opportunity

of making a representation on the penalty proposed to be imposed. As a matter of fact,

this type of disciplinary procedure is contemplated in the Constitution itself as could be

seen in Article 311(2)(a). Rule 19 of the Central Rules is in conformity with the above

provisions of the Constitution. This is a summary procedure provided to take

disciplinary action against a Government servant who is already convicted in a criminal

proceeding. The very foundation of imposing punishment under Rule 19 is that there

should be a prior conviction on a criminal charge. Union of India v. Sunil Kumar

Sarkar, AIR 2001 SC 1092: 2001(3) SCC 414: 2001 Supp (1) JT 193

The last part of Rule 14 of the Railway Rules, which is similar to last part of

Rule 19 of CCS (CCA) Rules, 1965, runs thus:.

“the disciplinary authority may consider the circumstances of the case and

make such orders thereon as it deems fit”.

The Supreme Court held, “the words “consider” has been used in

contradistinction to the word “determine”. The rule making authority deliberately used


the word “consider” and not “determine” because the word “determine” has a much

wider scope. The word “consider” merely connotes that there should be active

application of the mind by the disciplinary authority after considering the entire

circumstances of the case in order to decide the nature and extent of the penalty to be

imposed on the delinquent employee on his conviction on a criminal charge. This

matter can be objectively determined only if the delinquent employee is heard and is

given a chance to satisfy the authority regarding the final orders that may be passed by

the said authority. In other words, the term “consider” postulates consideration of all

the aspects, the pros and cons of the matter after hearing the aggrieved person. Such an

inquiry would be a summary inquiry to be held by the disciplinary authority after

hearing the delinquent employee. It is not at all necessary for the disciplinary authority

to order a fresh departmental inquiry which is dispensed with under Rule 14 of the

Railway Rules of 1968 which incorporates the principle contained in Article 311(2)

proviso (a). This provision confers power on the disciplinary authority to decide

whether in the facts and circumstances of a particular case what penalty, if at all, should

be imposed on the delinquent employee. It is obvious that in considering this matter the

disciplinary authority will have to take into account the entire conduct of the delinquent

employee, the gravity of the misconduct committed by him, the impact which his

misconduct is likely to have on the administration and other extenuating circumstances

or redeeming features, if any, present in the case and so on and so forth. It may be that

the conviction of an accused may be for a trivial offence….. where a stern warning or a

fine would have been sufficient to meet the exigencies of service. It is possible that the

delinquent employee may be found guilty of some technical offence, for instance,

violation of the transport rules or the rules under the Motor Vehicles Act and so on,

where no major penalty may be attracted………… In other words, the position is that

the conviction of the delinquent employee would be taken as sufficient proof of

misconduct and then the authority will have to embark upon a summary inquiry as to

the nature and extent of the penalty to be imposed on the delinquent employee and in

the course of the inquiry if the authority is of the opinion that the offence is too trivial

or of a technical nature it may refuse to impose any penalty inspite of the

conviction……… We must, however, hasten to add that we should not be understood as

laying down that the last part of Rule 14 of the Railway Rules of 1968 contains a

licence to employees convicted of serious offences to insist on reinstatement. The

statutory provision referred to above merely imports a rule of natural justice in

enjoining that before taking final action in the matter the delinquent employee should

be heard and the circumstances of the case may be objectively considered. This is in

keeping with the sense of justice and fair-play. The disciplinary authority has the

undoubted power after hearing the delinquent employee and considering the

circumstances of the case to inflict any major penalty on the delinquent employee

without any further departmental inquiry if the authority is of the opinion that the

employee has been guilty of a serious offence involving moral turpitude and, therefore,

it is not desirable or conducive in the interests of administration to retain such a person

in service.”.Divisional Personnel Officer, Southern Railway v. T.R. Challappan, AIR

1975 SC 2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ

68: 1976(1) LLN 269: 1975(2) SLR 587: 1976 SLJ 8; Jokhan v. Union of India,

1982(1) SLR 352.


The petitioner was originally dismissed under Rule 19(i) because of his

conviction under Sections 500 and 501, Indian Penal Code. In appeal, it was modified

to one of compulsory retirement. Admittedly, no notice was issued before passing the

order of dismissal. Evidently, that order was passed in view of the conviction of the

petitioner by the criminal court, following the judgements Divisional Personnel Officer,

Southern Railway v. T.R. Challappan, AIR 1975 SC 2216: 1976(1) SCR 783: 1976(3)

SCC 190: 1975 Lab IC 1598: 1976(1) LLJ 68: 1976(1) LLN 269: 1975(2) SLR 587:

1976 SLJ 8; Jokhan v. Union of India, 1982(1) SLR 352, it was held, that since no

summary enquiry was held and opportunity was not given to the delinquent employee,

the order of dismissal and the order of compulsory retirement and the subsequent order

refusing to set aside that order to be set aside. It was left open to the authorities, if they

still want, to take action against the petitioner according to law. T. Jayant v. Union of

India, 1980 SLJ 438: 1980(2) SLR 507: 1981(1) SLR 226. In view of the enunciation

by the Supreme Court in T.R. Challappan”s case (supra) of the requirement of affording

an opportunity of hearing before the services are terminated in the wake of an order of

conviction, while considering Rule 14 of the Railway Servants (Discipline and Appeal)

Rules, 1968 which is identical with Rule 9 of the Central Civil Services (Classification,

Control & Appeal) Rules, 1965, the impugned order dismissing the petitioner was

quashed. Sardara Singh v. Administration of Union Territory, Chandigarh, 1980(3)

SLR 702; Som Dutt v. Union of India, 1981(1) SLJ 5. See also D. Krishnamoorthy v.

Union of India, 1994(8) SLR 474 (CAT Madras).

An order imposing penalty to the Government servant under Rule 19(i) without

giving any opportunity of hearing to him would be in violation of the principles of

natural justice and the same would be void. Dost Mohammad v. Union of India, 1981(3)

SLR 274 All; Kirti Kumar D. Vyas v. State of Gujarat, 1981(1) SLR 556: 1983 Lab IC 67.

Conviction of assault was followed by removal. The punishment was held to be

proper. Past record was also considered. D.S.R. Murthy v. Director, South Central

Railway Circle, Survey of India, 1988(6) SLR 462 (CAT Hyderabad).

Departmental inquiry may be dispensed with where the employee has been

convicted of grievous hurt (Section 326, IPC) by a Criminal Court. K. Ramababu v.

Chief Staff Officer, 1988(5) SLR 392.

Where removal of delinquent employee is ordered under Rule 19, CCS (CCA)

Rules, 1965 (after arrest and conviction under Section 75, Madras City Police Act for

using abusive language) only the conduct that led to the conviction can be made the

basis of the order. Other circumstances cannot be taken into account. V. Ramachandran

v. Director, BCG Vaccine Laboratory, 1989(6) SLR 444 (CAT, Madras).

Disciplinary authority has power to impose any penalty under Rule 19(i), CCS

(CCA) Rules on the ground of conduct which has led to conviction on a criminal charge

even if an appeal against the conviction is pending. The fact that sentence was

suspended and delinquent released on bail is immaterial. Om Prakash Narang v. Union

of India, 1989(2) SLR 476, 484, para 14 (CAT Delhi) (FB) overruling CAT v. Union of

India, ATR 1987(1) CAT 258.


Where an order convicting and sentencing an accused public servant is the

subject matter of appeals and the accused is released on bail, such release does not suspend

the conviction. Om Prakash Narang v. Union of India, 1989(2) SLR 476 (CAT Delhi).

6. Predetermination of Penalty — The very foundation of imposing

punishment under Rule 19 is that there should be a prior conviction on a criminal

charge. Therefore, the question of having a pre-determined mind does not arise in such

cases. All that a disciplinary authority is expected to do under Rule 19 is to be satisfied

that the officer concerned has been convicted of a criminal charge and has been given a

show cause notice and reply to such show cause notice, if any, should be properly

considered before making any order under this Rule. Of course, it will have to bear in

mind the gravity of the conviction suffered by the Government servant in the criminal

proceedings before passing any order under Rule 19 to maintain the proportionality of

punishment. In the instant case, the disciplinary authority followed the procedure laid

down in the Rule 19, hence, it was held that it can not be said that the disciplinary

authority had any pre-determined mind when it passed the order of dismissal. Union of

India v. Sunil Kumar Sarkar, AIR 2002 SC 1092: 2001(3) SCC 414: 2001 Supp(1) JT

193; 2001(3) RCR 40: 2001(2) SLR 271 (SC).

7. Delay in initiating proceedings — Delay of over two and half year in

initiating disciplinary action on the basis of conduct leading to conviction on the charge

of corruption. Appeal against the order of conviction was pending. Delay sought to be

explained by the fact that the disciplinary proceedings were initiated after obtaining

legal advice. Held that the delay was properly explained and also that such delay does

not vitiate the disciplinary proceedings. Deputy Director of Collegiate Education

(Administration) v. S. Nagoor Meera, AIR 1995 SC 1364: 1995(3) SCC 377: 1995(3)

JT 32: 1995(2) Scale 1: 1995(2) SLR 379: 1995(29) ATC 574: 1995(2) SLJ 89: 1995

Lab IC 1615.

8. Reference to conduct leading to conviction — Simply because a person is

convicted, he cannot be dismissed from service. Both under Article 311 of the

Constitution of India and the service rules, a person can be dismissed from service on

the ground of conduct that has led to his conviction on a criminal charge. When in the

order of dismissal there is no reference to the conduct of the employee at all that led to

the conviction. The order of dismissal was held to be liable to be set aside. Balwan

Singh v. State of Haryana, 1999(2) SLR 595 P&H.

9. Conviction for Conduct not in Course of Employment — Rule 19(i) can

not be invoked to dispense with the services of a Government servant if the conduct

which led to his conviction was not in the course of employment and could not be

misconduct as per the Conduct Rules. A domestic quarrel which is wholly unrelated

with the employment of the Government servant cannot be a misconduct for the purpose

of Rule 19(i). Krishna Kuttey v. Sr. Supdt. of Post Offices, 1975 SLJ 749 (Kerala); Dost

Mohammed v. Union of India, 1981(3) SLR 274 All.

But in another case where conviction was ordered under Section 498-A of

Penal Code but convict was released on probation. Held that such release on probation

cannot preclude department from taking disciplinary action for misconduct leading to


the offence which resulted in conviction. Vincent Varghese v. State Bank of India,

1995(5) SLR 73 Ker (DB).

A person may be removed for an unbecoming act. Even if it was committed

outside office hours. Md. Zaboor Ahmed Rahim v. Union of India, 1988(2) SLJ 339

(CAT Pat).

10. Probation of Offenders Act: Effect of Benefit under Section 12 — An

order of release on probation comes into existence only after the accused is found guilty

and is convicted of the offence. Thus the conviction of the accused or the finding of the

court that he is guilty cannot be washed out at all because that is the sine qua non for

the order of release on probation of the offender. The order of the release on probation

is merely in substitution of the sentence to be imposed by the Court under Sections 3, 4

or 6 of the Act, the stigma continues and the finding of the misconduct resulting in

conviction must be treated to be a conclusive proof. The order of the Magistrate

releasing the offender on probation does not obliterate the stigma of conviction.

Therefore, it cannot be said that Section 12 of the Act contemplates an automatic

disqualification attaching to a conviction and obliteration of the criminal misconduct of

the accused. Divisional Personnel Officer, Southern Railway v. T.R. Challappan, AIR

1975 SC 2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ

68: 1976(1) LLN 269: 1975(2) SLR 587: 1976 SLJ 8.

Where the official was convicted but was given the benefit under the provisions

of Section 4(1) of the Act was not given any opportunity of being heard before the

impugned order was passed, nor any enquiry was held, the impugned order of penalty

was quashed. Jile Singh v. Sub-Divisional Officer, Telegraphs, 1982(1) SLJ 578:

1982(2) SLR 225.

Where a Government servant is convicted, but released on probation

disciplinary authority can remove him from service. But before doing so, he must

consider the conduct that led to conviction. Failure to do so vitiates the order of

removal. P.Selvaraj v. Assistant Engineer, Telephones, 1990(3) SLR 223 (CAT

Madras).

Where a person is convicted by a criminal court but released by the court on

probation, action under Rule 19(1) CCS (CCA) Rules, 1965 for his removal, after

considering his explanation is permissible. Ratti v. Union of India, 1990(3) SLR 351

(CAT Jabalpur).

Release of delinquent on probation of good conduct does not exonerate him

from the departmental punishment that can be imposed on conviction of a criminal

charge. Union of India v. Bakshi Ram, 1990(2) ATJ 121 (SC). See also Additional

D.I.G. of Police, Hyderabad v. P.R.K. Mohan, 1997(11) SCC 571: 1998 SCC(Cr) 206.

For the purpose of Rule 19(1), CCS (CCA) Rules, dismissal is competent, where the

employee is released by the criminal court on probation. P. Anand Raj v. Union of

India, 1989(4) SLJ (CAT) 10: 1990(2) ATJ 384 (CAT New Bombay).

In Section 12, Probation Act, the term “suffer disqualification, if any, attaching

to a conviction for an offence under such law” does not bar dismissal. Action under the


Probation Act does not mean that the conviction has been set aside. Ratti alias Ratiram

v. Union of India, 1990(13) ATC 71 (Jabalpur).

In a case decided by the CAT Madras, applicant had been convicted under

Section 323, Indian Penal Code and was released after due admonition. Taking into

account the conduct which had led to his conviction, the disciplinary authority, after

inquiry under Rule 19(1), CCS etc. Rules, awarded the penalty of reduction by 3 stages

for 3 years. It was held that there was nothing illegal in the course adopted. P.

Vaidyanath Swamy v. Secretary to Government, Education Department, 1989(6) SLR

459 (CAT Madras). [The Tribunal held in the above case that it was not correct to argue

that when a person is released after due admonition, there is no “conviction.”]

Petitioner was convicted of bigamy but released under the Probation of

Offenders Act. The disciplinary authority imposed on the petitioner a penalty of

reduction of pay for 2 years without cumulative effect. The appellant authority

enhanced it without reasons to five years” reduction. It was held that while the

enhancement was illegal, the penalty of 2 years” reduction should stand. Release on

probation does not come in the way. Sudhir Chandra Jha v. Union of India, 1990(6)

SLR 166 (CAT Patna).

11. Probation of Offenders Act: Object of Section 4 and 12 — It is manifest

from the language of Section 4 of the Act that the provisions thereof come into play

only when a person is found guilty of having committed an offence. The Court records

a conviction in consonance with the modern policy of penological reforms and instead

of sentencing such a convict at once to imprisonment, he is released on probation on his

entering into a bond to appear and receive sentence during the period of probation and

in the mean time he has to keep peace and be of good behaviour. If such a convict

violates the conditions of the good behaviour, he can be sentenced to imprisonment.

The object of this beneficial legislation is to provide an opportunity to persons who are

not habitual offenders and are not guilty of heinous crimes to improve themselves

instead of keeping them in jail and turning them into hardened criminals.

The object of Section 12 of the Act is to remove disqualification attaching to a

conviction of an offence so that if such a person seeks to lead a normal and useful life,

the factum of conviction does not stand in his way and prove a disqualification in

obtaining a job or for being elected to the elective offices. These instances can be

multiplied. However, from the scheme of the Act and the language of Section 12, it

cannot be spelled out that release on probation exonerates a person of the charges of

misconduct levelled against him. What Section 12 of the Act has in view is an

automatic removal of disqualification flowing from conviction and not an obliteration

of conduct of the accused. Departmental proceedings are not taken because the man is

convicted. They are directed against the original misconduct of the delinquent. Section

12 of the Act does not afford immunity against departmental proceedings for the

original misconduct. It is that misconduct which provides the basis for punishment and

not the conviction. Kesar Singh v. Union of India, 1981(3) SLR 415.

An employee in a drunken state assaulting his superior in office, is a grave

misconduct. For such misbehaviour the employee was convicted but released on

probation. Held that release on probation means misconduct was not serious and such


employee could continue in service. Babulal v. State of Rajasthan, 2002(1) SLR 599

Raj (DB).

In another case conviction was ordered under Section 498-A of Penal Code but

convict was released on probation. Held that such release on probation cannot preclude

department from taking disciplinary action for misconduct leading to the offence which

resulted in conviction. Vincent Varghese v. State Bank of India, 1995(5) SLR 73

Ker (DB).

12. Power of appellate criminal court — Delinquent convicted under Section

19(n) read with Section 16(2) of CRPF Act, 1949 being under influence of liquor. Held

that the Appellate court hearing the appeal against the order of conviction has no power

to direct that conviction was not to interfere with service career of the convict.

Commandant 20 BN. ITB Police v. Sanjay Binjoa, AIR 2001 SC 2058: 2001(5) SCC

317: 2001 AIRSCW 1858: 2001 All LJ 1126: 2001(2) AllCriLR 668: 2001 CalCriLR

385: 2001(2) ChandCriC 207: 2001(2) Crimes 277: 2001(2) ECC 300: 2001 Mad LJ

(Cri) 867: 2001(20) OCR 755: 2001(2) RCR 798: 2001(5) SLR 457.

Allegation against a member of PAC of commission of revolt and Supreme

Court maintaining the conviction under some of the provisions and setting aside the

conviction under remaining provisions. Prayer for ameliorative relief of restricting the

disciplinary proceedings against them. Held that such relief can not be granted but

liberty granted to the appellant to approach State Government for securing such relief.

Krishna Gopal Singh v. State of Uttar Pradesh, AIR 2000 SC 3616: 2000 SCC(Cr) 93.

13. Suspension of sentence— Clause (a) of Article 311 (2) speaks of "conduct

which has led his conviction on a criminal charge". It does not speak of sentence or

punishment awarded. Merely because the sentence is suspended and/or the accused is

released on bail, the conviction does not cease to be operative. Deputy Director of

Collegiate Education (Administration) v. S. Nagoor Meera, AIR 1995 SC 1364: 1995(2)

SCR 308: 1995(3) SCC 377: 1995(2) SLR 379: 1995(29) ATC 574: 1995(2) SLJ 89:

1995 Lab IC 1615.

14. Set aside of conviction — The more appropriate course in all such cases is

to take action under clause (a) of the second proviso to Article 311(2) once a

government servant is convicted of a criminal charge and not to wait for the appeal or

revision, as the case may be. If, however, the government servant-accused is acquitted

on appeal or other proceeding, the order can always be revised and if the government

servant is reinstated, he will be entitled to all the benefits to which he would have been

entitled to had he continued in service. The other course suggested, viz., to wait till the

appeal, revision and other remedies are over, would not be advisable since it would

mean continuing in service a person who has been convicted of a serious offence by a

criminal court. Deputy Director of Collegiate Education (Administration) v. S. Nagoor

Meera, AIR 1995 SC 1364: 1995(2) SCR 308: 1995(3) SCC 377: 1995(2) SLR 379:

1995(29) ATC 574: 1995(2) SLJ 89: 1995 Lab IC 1615.

Order of dismissal passed on account of the conviction but order of conviction

set aside by the Supreme Court. Held that employee is entitled to reinstatement in

service with full back wages. Sat Pal v. Chief of the Army Staff, 2002(1) SLR 37Delhi.


Termination on account of the conviction which was ultimately set aside in

appeal and substituted with acquittal. Termination though effected after payment of

retrenchment benefit, it was held that the order of termination being punitive and

stigmatic and in violation of principles of natural justice is not sustainable. Nar Singh

Pal v. Union of India, AIR 2000 SC 1401: 2000(3) SCC 588: 2000(96) FJR 502:

2000(2) SLR 592 (SC): 2000(3) SLJ 332: 2000 Lab IC 1377: 2000(85) FLR 458.

15. Effect of acquittal — Acquittal in criminal case does not affect the

departmental proceedings which can go on simultaneously and the order of acquittal

cannot ipso facto conclude the departmental proceedings. Mysore Paper Mills Ltd. v. G.

Shekhar @ Gyana Shekharan, 2002(3) SLR 677 Kar (DB). Nor acquittal would be a

ground for setting aside order of dismissal especially when charges in criminal case and

charges in departmental proceedings were different. Suresh Kumar Tiwari v.

D.I.G.P.A.C., Kanpur Anubhag, Kanpur, 2002(3) SLR 680 All. Merely because accused

has been acquitted, the power of authority to continue with Departmental Inquiry is not

taken away. Gobardhan Manna v. State of West Bengal, 2002(3) SLR 707 Cal (DB).

Acquittal in criminal case on benefit of doubt does not affect disciplinary

proceedings. Allegations of misconduct i.e. (a) Fraudulently effecting withdrawal of

money from SB Account of depositor without his knowledge by putting signature of the

depositor himself (b) Failing to account for amount realised by him, as customs duty in

respect of foreign parcels found established in enquiry. Administrative Tribunal in view

of acquittal in criminal trial set aside the finding of departmental proceedings on first

charge and directed for review of the punishment afresh. Supreme Court in appeal held

that the decision of Tribunal was erroneous because nature and scope of criminal case

and departmental proceeding are very different. While in criminal case the charge to be

proved by the Standard of proof beyond reasonable doubt while in departmental

proceedings the standard of proof for proving the charge is preponderance of

probabilities. Senior Superintendent of Post Offices, Pathanamthitta v. A. Gopalan, AIR

1999 SC 1514: 1997(11) SCC 239: 1999(1) LLJ 1313: 1999 Lab IC 234: 1999(82) FLR

784: 2000(1) LLN 92; See also Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh, 1994

Supp (3) SCC 628:1994(5) SLR 534: 1994(28) ATC 594: 1994(69) FLR 1078: 1994(4)

CCR 769(SC): 1995(2) LLJ 633: 1996(2) LLN 451; Govind Das v. State of Bihar,

1997(11) SCC 361.

Disciplinary proceedings initiated against a police officer alleging highly

reprehensible conduct in flouting the provisions of Section 160(1) CrPC and Standing

Instructions of the Director General of Police by allowing two women to remain at the

Police station at night. Acquittal ordered by appellate court on the ground that the two

ladies had turned hostile and had not supported the prosecution case. Held that the

criminal charge and the charge in the departmental enquiry were entirely different. The

appellate court in the criminal case came to the conclusion that since the two ladies had

not supported the prosecution case, the charges against the appellant were not proved.

In the judgment, the criminal courts have, however, accepted that one of the ladies,

namely Rani, visited the police station at midnight allegedly to find out as to what had

happened to the other lady (Rani”s sister-in-law), who was already in the police station.

When the two ladies were admittedly at the police station at night, no fault can be found

with the charges, as framed in the departmental enquiry. It is a settled proposition of


law that strict rules of evidence are not applicable to departmental enquiries. Before the

Enquiry Officer, the statements of both the ladies were recorded. He appreciated the

evidence in the light of their earlier statements made in the preliminary enquiry. In this

view of the matter, it is not correct to say that there was no evidence before the enquiry

officer. State of Tamil Nadu v. M.A. Waheed Khan, 1998(8) SCC 723: 1999(3) LLJ 710.

16. Back wages — In case of acquittal, grant of consequential benefits with all

back-wages etc. cannot be as a matter of course as it would be deleterious to the

maintenance of the discipline if a person suspended on valid considerations is given full

back wages as a matter of course, on his acquittal. In such case the disciplinary

authority may enquire into misconduct unless, the self-same conduct was subject of

charge and on trial the acquittal was recorded on a positive finding that the accused did

not commit the offence at all and acquittal is not given on benefit of doubt. Krishnakant

Raghunath Bibhavnekar v. State of Maharashtra, AIR 1997 SC 1434: 1997(3) SCC

636: 1997(1) LLJ 1190: 1997(2) SLR 396: 1997(2) LLN 602: 1997(2) SLJ 166: 1997(1)

SCJ 597: 1997 Lab IC 1538 .

Order of termination passed on account of conviction u/s 302 & 34 of IPC

which was later on set aside and reinstatement with continuity of services was ordered.

In regard to back wages it was held that the employee himself was disabled to render

service during the period of incarceration and therefore back wages were rightly denied.

Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board,

Himmatnager, AIR 1997 SC 1802: 1996(11) SCC 603: 1997(1) SLR 14: 1997(2) LLN

979: 1997(2) SLJ 38: 1997(2) LLJ 683: 1997(91) FJR 53.

One of the delinquents granted back wages while passing the consequential

order for reinstatement while the other delinquent denied back wages on flimsy

grounds. Held that in the absence of very relevant and exceptional circumstances, the

consequential order should also be of similar import in both the cases therefore denial

of back wages by Tribunal is improper. Ramesh Chander v. Delhi Administration,

1996(10) SCC 409: 1996(3) SLJ 124: 1996(5) SLR 166: 1996(74) FLR 2235: 1996(6)

AD(SC) 316: 1997(1) UJ 97: 1997(3) LLJ 509.

17. Fresh Departmental Inquiry: Whether Necessary — It is not at all

necessary for the disciplinary authority to order a fresh departmental enquiry when a

Government servant has been convicted on a criminal charge. The conviction of the

delinquent employee would be taken as sufficient proof of misconduct. The disciplinary

authority will embark upon a summary inquiry as to the nature and extent of the penalty

to be imposed on the delinquent employee after hearing the delinquent employee.

Divisional Personnel Officer, Southern Railway v. T.R. Challappan, AIR 1975 SC

2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ 68: 1976(1)

LLN 269: 1975(2) SLR 587: 1976 SLJ 8.

18. Natural Justice: Violation of — Imposition of penalty without giving

opportunity to delinquent officer to explain his position is in violation of principles of

natural justice. Divisional Personnel Officer, Southern Railway v. T.R. Challappan,


LLJ 68: 1976(1) LLN 269: 1975(2) SLR 587: 1976 SLJ 8; T. Jayant v. Union of India,

1980 SLJ 438: 1980(2) SLR 507: 1981(1) SLR 226; Sardara Singh v. Administration of


Union Territory, Chandigarh, 1980(3) SLR 702; Som Dutt v. Union of India,

1981(1) SLJ 5.

Rules of natural justice require that a party against whom an allegation is being

inquired into should be given a hearing and not condemned unheard. As to what are the

rules of natural justice to be followed in a particular case would depend upon the

circumstances in each case and must also deemed on the provisions of law under which

the charges are being inquired into in the disciplinary proceedings. Uttar Pradesh Co-

operative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753:

1999(1) SCC 741: 1999(1) CLT 134(SC): 1999(2) SLR 576: 1999(1) LLJ 633: 1999(1)

LLN 1081: 1999(3) SLJ 124.

In one case, right through, the delinquent officer had entertained a doubt about

the impartiality of the enquiry to be conducted by the enquiry officer, when he made a

representation at the earliest, requesting to change the enquiry officer, the authorities

should have acceded to the request and appointed another enquiry officer, other than the

one whose objectivity was doubted. Unfortunately, that was not done. Even after the

Director General had given an opportunity to the delinquent to participate in the

enquiry, the enquiry officer obviously was expected to recall the ex-parte order and

given the delinquent an opportunity to cross-examine the witnesses already examined

and to adduce his evidence in rebuttal. However, the enquiry officer did not adopt the

said procedure which would have been just, fair and reasonable. Under these

circumstances, it was held to be a clear case that the delinquent had not been afforded a

fair opportunity, much less a reasonable opportunity to defend himself. That has

resulted in violation of the principles of natural justice and fair play offending Arts. 41,

21 and 311(2) of the Constitution. The orders of dismissal as confirmed by the appellate

authority were accordingly quashed. Indrani Bai v. Union of India, 1994 (2) SCC 256:

1994(3) SCR 608: 1994(27) ATC 755: 1994(2) UJ 431: 1994(2) SLR 672: 1994(69)

FLR 94: 1994(2) LLN 391: 1995(1) LLJ 431.

19. Combined Effect of Rule 10(2)(b) and Rule 19(i) — The combined effect

of Rule 10(2)(b) and Rule 19(i) is that as soon as it is brought to the notice of the

appointing authority that the Government servant has been convicted of an offence

sentenced to an imprisonment of the description mentioned in Rule 10(2)(b), he may be

forthwith dismissed from service or shall be deemed to have been under suspension by

an order of the appointing authority with effect from the date of conviction. Union of

India v. Susanta Kumar Mukherjee, 1977(1) SLR 334 Cal.

Clause (ii)

20. Dispensing with enquiry — Dispensation of a regular enquiry is

permissible when the authority is satisfied from the materials placed before him that it

is not reasonably practicable to hold a departmental enquiry. It is incumbent on the

authority to show that the satisfaction is drawn for adequate reasons and not the

outcome of whim and caprice of the concerned authority. Atul Chandra Das v. Abhijit

Kumar Sinha Kashyap, 2002(3) SLR 751 Gau.

The power to dismiss an employee by dispensing with an enquiry is not be

exercised so as to circumvent the prescribed rules. The satisfaction as to whether the


facts exist to justify dispensing with enquiry has to be of the disciplinary authority.

Where two views are possible as to whether holding of an enquiry would have been

proper or not, it would not be within the domain of the Court to substitute its view for

that of the disciplinary authority as if the Court is sitting as an appellate authority over

the disciplinary authority. The contemporaneous circumstances can be duly taken note

of in arriving at a decision whether to dispense with an enquiry or not. What the High

Court was required to do was to see whether there was any scope for judicial review of

the disciplinary authority”s order dispensing with enquiry. Indian Railway Construction

Co. Ltd. v. Ajay Kumar, 2003(4) SCC 579: 2003(2) SLR 639: 2003(2) LLJ 150. See

also Kendriya Vidyalaya Sangathan v. S.C. Sharma, 2005 (2) SCC 363: 2005 (2) SLR 1

(SC).

21. Not Reasonably Practicable to Hold an Inquiry in the Manner Provided

in These Rules: Meaning of — The expression “not reasonably practicable to hold an

inquiry in the manner provides in these rules” must be strictly construed to mean that

there were physical or legal impediments to the holding of such an inquiry or in other

words that the holding of such an inquiry was not possible. If the rule is invoked the

only requirement is for the authority to “consider the circumstances of the case and

make such orders thereon as it deems fit”. R.K. Misra v. General Manager, Northern

Railway, 1977 SLJ 69: 1977(2) SLR 127 Delhi. The requirement is not that the enquiry

is impossible and cannot in any circumstances be held, nor it is the requirement of the

law that such an inquiry is wholly or utterly impracticable. On the other hand, the

requirement is at the lowest plane that it is not reasonably practicable to hold the kind

of enquiry envisaged by law. This distinction has to be kept in mind because it is one

thing to hold, it is impossible or totally impracticable and entirely different to say that

the empowered authority for some valid reason feels satisfied that reasonable

consideration make the holding of the prescribed enquiry as impracticable. Boota Ram

v. State of Punjab, 1980(2) SLR 195 P&H.

A Divisional Bench of Delhi High Court in Satyavir Singh v. Union of India,

1982 Lab IC 663: 1981(3) SLR 383, did not agree with the view of single Judge in R.K.

Mishra”s case (supra) and held that it is not necessary that there should be physical or

legal impediments to the holding of an inquiry and it would be enough compliance with

the provisions if the reasons given for dispensing with the inquiry are germane and not

extraneous. If the possible witnesses are under threats or coercion, it cannot be disputed

that no impartial inquiry is possible. The Division Bench accepted the view of Punjab &

Calcutta High Court in Boota Ram”s case (supra) and State of West Bengal v. Narendra

Narayan Das, 1977 Lab IC 856: 1978(1) SLR 646. Also see Baidyanath Singh v.

General Manager, S.E. Rly., 1983(1) SLR 1 (Cal).

In an enquiry against police constable, the enquiry dispensed on the ground that

appellant himself being a Police Constable could have influenced the witnesses who

would have come in the departmental enquiry. It was held that such ground was not

tenable and the order dispensing with the departmental inquiry is not in accordance with

law. Chhote Lal v. Union of India, 2000(10) SCC 196.

22. Ambit of Consideration by the Disciplinary Authority: Associating of Employee — H.L. Anand J., in R.K. Misra v. General Manager, Northern Railway,


1977 SLJ 69: 1977(2) SLR 127, said that: “It could, therefore, be reasonable to interpret

the concluding part of the Rule in context of clause (ii) of it to imply an obligation to

consider the material objectively associating the delinquent with the process, in so far

as such an association is reasonably practicable”.

Division Bench of Delhi High Court in Satyavir Singh v. Union of India, 1982

Lab IC 663, did not agree with this view. A Division Bench of Karnataka High Court in

T.K. Veerangaiah v. State of Karnataka, 1981(3) SLR 87, did not agree with the views

of Allahabad and Delhi High Court in Union of India v. Rajendra Prasad Srivastava,

1977 (2) SLR 81 All and R.K. Misra v. General Manager, Northern Railway, 1977 SLJ

69: 1977(2) SLR 127 and held that the Supreme Court decision in Divisional Personnel

Officer, Southern Railway v. T.R. Challappan, AIR 1975 SC 2216: 1976(1) SCR 783:

1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ 68: 1976(1) LLN 269: 1975(2) SLR

587: 1976 SLJ 8 laid down in the law only in regard to the cases falling under the first

category and the said decision does not govern the falling under the second category.

Where the departmental inquiry has been dispensed with, and, against the final

order (removal and dismissal), there is an appeal, the appellate authority must make a

sincere effort to find out whether at that stage, it is not reasonably, practicable to hold

the inquiry. Mere speculation that some witnesses might have died or retired, is not

enough. Other witnesses can still be summoned. Ekrajul Khan v. Union of India,

1990(13) ATC 456 (CAT Patna).

Even where the departmental inquiry has been dispensed with under Article

311(2) of the Constitution second proviso, the employee can file a departmental appeal

under CCS (CC&A) Rules, 1965 against the order of removal or dismissal. Satyavir

Singh v. Union of India, 1985(2) Supp SCR 791: AIR 1986 SC 555: 1985(4) SCC 252:

1986 Lab IC 1: 1986(1) SLR 255: 1986(52) FLR 62: 1986(1) SLJ 1: 1986(1) ATR 78:

1986 SCC (Lab) 1: 1986(4) ELJ (LS) 53: V. Kesavan Kutty v. Union of India, 1990(7)

SLR 571, 584, 585, para 28 (CAT Hyderabad).

A perusal of the dismissal order indicated that there was no mention of the

reasons required to be recorded by the authority in writing to permit exercise of the

power under proviso (b) to clause (2) of Article 311. There was also no other material

produced to show that the requisite reasons were recorded by that authority in writing

elsewhere. In such a situation, it was held that the Tribunal rightly reached the

conclusion that the power to dispense with the inquiry was not available. But the

quashing of the dismissal orders does not deprive the appellant of the authority to hold

an inquiry into the alleged misconduct and to take the necessary consequential actions

depending on the outcome of that inquiry. State of Orissa v. Dinabandhu Baheta,

1997(10) SCC 383: 1998(2) LLJ 107: 1998(3) LLN 577; See also Chandigarh

Administration, Union Territory, Chandigarh v. Ajay Manchanda, AIR 1996 SC 3152:

1996(3) SCC 753: 1996 Lab IC 1267: 1996(2) SLR 673: 1996(73) FLR 1192: 1996(2)

LLJ 675: 1996(2) LLN 243.

23. Whether the Conclusion of Disciplinary Authority Open to Challenge

— Clause (3) of Article 311, it may be noticed, declared that where a question arises

whether it is reasonably practicable to hold an inquiry as contemplated by Clause (2),

the decision of the authority empowered to dismiss such person shall be final on that


question. Union Territory, Chandigarh v. Mohinder Singh, AIR 1997 SC 1201: 1997(2)

SCR 71: 1997(3) SCC 68: 1997(1) LLJ 826: 1997(1) SLR 707: 1997(2) LLN 70:

1997(76) FLR 289: 1997(2) SCJ 134: 1997 Lab IC 1493.

Once the authority has properly applied the provision the conclusion of fact

that it was not reasonably practicable to hold an inquiry was final in view of clause (3)

of Article 311 of the Constitution. The satisfaction of the authority must be indicated

by recording “some reason” which apparently should have a nexus to the practicability

or otherwise of holding an enquiry. If that has been done, the constitutional prescription

would stand satisfied. The sufficiency of the material on which such satisfaction has

been arrived at or the weight or cogency of those reasons, if they are germane to the

issue are not matters for the court to consider, but for the empowered authority to be

satisfied about it.

A challenge to the satisfaction or decision of not holding an enquiry can

possibly be raised only if both the letter and the spirit of the law are violated by the

non-recording of any reason whatsoever. Secondly, such a decision can perhaps be

successfully assailed only if it is clearly established that the reason recorded by the

empowered authority are not at all germane to the issue and in fact are wholly

extraneous thereto. Lastly, the exercise of the power under Article 311(2)(b) of the

Constitution could obviously be assailed on the grounds of established mala fide which

would then render the action is a fraud on the power granted by the constitution. R.K.

Misra v. General Manager, Northern Railway, 1977 SLJ 69: 1977(2) SLR 127; Boota

Ram v. State of Punjab, 1980(2) SLR 185.

The rule envisages the satisfaction of the Disciplinary Authority, and as such,

the Court would not be entitled to substitute its own judgement in order to ascertain

whether or not it was reasonably practicable to hold an enquiry. But where the

Disciplinary Authority has proceeded on irrelevant considerations or has failed to take

relevant considerations into account, or has come to a decision which a reasonable

person could not arrive at, the decision of the Disciplinary Authority would be open to

challenge. Virendra Prasad Mishra v. Union of India, 1982(2) SLR 3 Patna.

The disciplinary authority taking view that it was not reasonably practicable to

hold inquiry as the witnesses would not come forward freely to depose against the

delinquent. Held that the order of disciplinary authority on the question of practicability

to hold the inquiry is final. Chandigarh Administration v. Gurdit Singh, 1997(10) SCC

430: 1998(4) JT 253: 1998(79) FLR 750.

In one case there was a failure on the part of the Authority concerned in

exercise of power under Rule 19(ii) of the CCA Rules as the order did not contain

reasons in writing, it was held by Supreme Court that it would not be appropriate for

the Court to interfere with the impugned order in exercise of its jurisdiction under

Article 136 of the Constitution of India. Prabhu Lal Sharma v. Union of India, 2001

Supp (1) JT 584: 2001(6) Supreme 592: 2001(5) SLT 128.

The Superintendent of Police, Intelligence, had reported that the employee-sub

inspector “is a terror in the area” and, more important, in his very presence, the

respondent “intimidated the complainant Shri Ranjit Singh who appeared to be visibly


terrified of this Sub Inspector”. It was also reported that the other persons who were

arrested with Ranjit Singh, and who were present there, immediately left his office

terrified by the threats held out by the respondent. In such a situation — and keeping in

view that all this was happening in the year 1991 in the State of Punjab — it was held

that the Senior Superintendent of Police cannot be said to be not justified in holding

that it is not reasonably practicable to hold an inquiry against the respondent. Union

Territory, Chandigarh v. Mohinder Singh, AIR 1997 SC 1201: 1997(2) SCR 71:

1997(3) SCC 68: 1997(1) LLJ 826: 1997(1) SLR 707: 1997(2) LLN 70: 1997(76) FLR

289: 1997(2) SCJ 134: 1997 Lab IC 1493.

In another case there was no mention of the reasons required to be recorded by

the authority in writing to permit exercise of the power under proviso (b) to clause (2)

of Article 311. There was no other material produced to show that the requisite reasons

were recorded by that authority in writing elsewhere. In such a situation, it was held

that the conclusion reached by the Tribunal that this power was not available to

dispense with the inquiry cannot be faulted. State of Orissa v. Dinabandhu Baheta,

1997(10) SCC 383: 1998(2) LLJ 107: 1998(3) LLN 577.

24. Whether Reasons are to be Communicated to the Employee — The

requirement of the rule is of recording the reasons and not of communicating the same

to the employee. R.K. Misra v. General Manager, Northern Railway, 1977 SLJ 69:

1977(2) SLR 127. In Boota Ram v. State of Punjab, 1980(2) SLR 185, It was held that,

“There is no legal obligation on the respondent State to serve a copy of the reasons for

dispensing with the enquiry on the delinquent employee. No adverse consequences

would, therefore, flow from the non-delivery of these reasons to him if they have

otherwise been duly recorded in accordance with law. It is, of course, elementary that

the said reasons cannot be withheld from the employee and if a proper demand

therefore is made by him, then access thereto is not denied”.

25. Whether Rule Authorises to Altogether Dispense with an Inquiry —

Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968, is similar to

the present rule Thaker, J., while interpreting the rule in Bholanath Khanna v. Union of

India, 1975(1) SLR 277 Guj, held that the rule merely conceives of a situation where

the disciplinary authority may not consider it reasonably practicable to hold an inquiry

and provides for a solution in that behalf. And the solution provided is that if it is not

feasible to hold an enquiry in the prescribed manner, a special procedure as may be

deemed fit by the authority concerned may be adopted by it. The bare minimum that he

is obliged to follow is to appraise the Railway/Government servant concerned of the

imputations or fault attributed to him and to require him to submit his explanation or

comments in regard to the imputations and as regards as the penalty proposed. He

cannot dispense with inquiry altogether. A Division Bench of Delhi High Court in

Satyavir Singh v. Union of India, 1982 Lab IC 663, held that clause (b) to proviso to

Article 311(2) of the Constitution depends upon the satisfaction of the authority

concerned that for some reasons to be recorded by that authority in writing, it is not

reasonably practicable to hold such inquiry. Since reasons have to be an objective

satisfaction the reasons can be examined by a court of law, but, of course, to the extent

permissible. There is no express or implied requirement of law that the reasons have to

be communicated to the aggrieved employee.


26. Natural justice and dispensation of enquiry — The doctrine of principle

of natural justice has no application when the authority concerned is of the opinion that

it would be inexpedient to hold an enquiry and that it would be against the interest of

security of the Corporation to continue in employment the offender-workman when

serious acts are likely to affect the foundation of the institution. The principle of natural

justice requires to be modulated consistent with the scheme of the Rules. It is settled

law that the principle of natural justice cannot supplant but can supplement the law . In

that view of the matter, the Rule having been made to meet specified contingency the

principle of natural justice by implication, stands excluded. Hari Pada Khan v. Union

of India, AIR 1996 SC 1065: 1995 Supp (6) SCR 157: 1996(1) SCC 536: 315: 1996(1)

SCJ 21: 1996 SCC(L&S) 333: 1996(32) ATC 481: 1996 Lab IC 934: 1996(1) SLR 641:

1996(1) LLJ 1044: 1996(1) LLN 462.

Clause (iii)

27. Interest of Security of State not to Suffer on Unsubstantial or Hyper-technical Grounds — No doubt Article 311(2) is intended to afford a sense of security

to Government servants covered by sub-article (1) and the safeguards provided by sub-

article (2) are mandatory. But clause (c) of the proviso to this sub-article which is

designed to safeguard the larger interest of the security of the State cannot be ignored

or considered less important when construing sub-article (2). The interest of the

security of the State should not be allowed to suffer by invalidating the order on

unsubstantial or hyper-technical grounds which do not have the effect of defeating the

essential purpose of the constitutional safeguards of individual Government servant.

B.C. Das v. State of Assam, 1971(1) SCWR 793: AIR 1971 SC 2004: 1971 Supp SCR

477: 1971(2) SCC 168: 1971(2) SLR 756: 1971 Lab IC 1182: 1971(1) LLJ 576.

Departmental inquiry may be dispensed with where the delinquent, leading a

mob, used filthy language and took a turbulent mood with the help of associates. Abani

Kanta Datta v. Union of India, 1988(5) SLR 408 (CAT, Calcutta).

28. President/Governor can Dispense with Enquiry if in the Interest of Security of State: It is not Expedient to Hold it — President/Governor can dispense

with the enquiry if the conduct of an inquiry into the charges is not expedient only in

the interest of the security of the State or not on any other ground. B. Bhaskara Reddy

v. Government of A.P., 1981(1) SLR 249: 1981(1) SLJ 342.

29. Satisfaction of President or Governor Need not be Personal — The

decision of any Minister or officer under rules of business made under any of the two

Articles 77(3) and 166(3) is the decision of President or the Governor respectively. The

decision in Sardari Lal v. Union of India, 1971(3) SCR 461: AIR 1971 SC 1547:

1971(1) SCC 411: 1971(2) SLR 168: 1971(1) LLJ 315, that the President has to be

satisfied personally and that the functions of the President cannot be delegated is not

the correct statement of law. Shamsher Singh v. State of Punjab, 1974(2) SLR 701

(SC). Decision of Delhi High Court, Sardari Lal v. Union of India, 1971(3) SCR 461:

AIR 1971 SC 1547: 1971(1) SCC 411: 1971(2) SLR 168: 1971(1) LLJ 315, is no longer

good law.


30. Satisfaction of the President or Governor is Subjective — The power of

the President or the Governor under Clause (c) of second proviso to Article 311(2) is to

be exercised on his subjective satisfaction and is not examined by the courts. The issues

of the interest of security of State are not justifiable and it cannot be subjected to

judicial review or scrutiny. Udailal v. State of Rajasthan, 1980(2) SLR 695. A Division

Bench of Andhra Pradesh in B. Bhaskara Reddy v. Government of A.P., 1981(1) SLJ

1342: 1981 SLR 249, however, held that an order removing the Government servant is

an administrative act of the Governor, no doubt on his being satisfied that it is not

expediency in the interest of the security of the State to hold an enquiry, it is open to

the Court to find out whether there was any material at all before the Governor to pass

such an order.

Subjective satisfaction of the President is subject to judicial review and its

validity can be examined by the Court on the ground that the satisfaction of President or

the Governor is vitiated by mala fide or is based on wholly extraneous or irrelevant

grounds. A.K. Kaul v. Union of India, AIR 1995 SC 1403: 1995(3) SCR 469: 1995(4)

SCC 73: 1995(4) JT 1: 1995(3) SLR 1: 1995(3) SLJ 1: 1995(30) ATC 174: 1995 Lab IC

1778: 1995(2) LLN 1.

31. Termination of Service in Interest of Security of State Under Article 310: Order to Recite President”s satisfaction — The service of petitioner, a

permanent employee were terminated under clause (1) of Article 310. The impugned

order did not recite that the President was satisfied that in the interest of security of the

State it was not expedient to hold an enquiry under Article 311(2). The impugned order

thus violates Article 311(2) of the Constitution. Khairat Hussain v. Union of India, AIR

1969 All 422; Mohammad Akhtar v. Union of India, 1967 All LJ 645; Swadeshi Cotton

Mills Co. v. State Industrial Tribunal, U.P., AIR 1961 SC 1381: 1962(1) SCR 422:

1961(2) LLJ 419: 1961(3) FLR 527: 1961-62(20) FLR 325: 1963(1) SCJ 398.

32. Decisions of Governor or President that in the Interest of the Security of State, it is not Expedient to Hold an Inquiry: Judicial Review of — The inquiry

as envisaged in Article 311 (2) and/or that may be prescribed under the relevant

Discipline and Appeal Rules of the Union or the State Government is not required to be

gone through if the President or the Governor as the case may be, is satisfied about its

inexpedience in the interest of the security of the State. The Court cannot substitute its

view for those of the executive as to whether it would be expedient in the interest of the

security of State of dispense with the inquiry, the Court is however, entitled to inquire

whether the conditions precedent to the formation of the satisfaction have any factual

basis or that the executive had acted in good faith or on relevant materials upon which

the power has been exercised. A.R. Singh v. Principal Secretary to the Government of

Gujarat, 1981(2) SLJ 599: 1982 (1) SLR 467; T.K. Veerangaiah v. State of Karnataka,

1981(3) SLR 86; Tukaram Bhau Mane v. State of Maharashtra, 1982 Lab IC 1942.

If an order passed under Article 311(2) Proviso (c) is assailed before a Court of

law on the ground that the satisfaction of the President or the Governor is not based on

circumstances which have a bearing on the security of the State, the court can examine

the circumstances on which the satisfaction of the President or the Governor is based;

and if it finds that the said circumstances have no bearing whatsoever on the security of


the State, the Court can hold that the satisfaction of the President or the Governor

which is required for passing such an order has been vitiated by wholly extraneous or

irrelevant considerations. Union of India v. Balbir Singh, 1998(5) SCC 216: 1998 AIR

SC 2043: 1998(4) SLR 351: 1998(79) FLR 694: 1998(3) SLJ 202: 1999(1) LLJ 735:

1998(77) ECR 11: 1998 Lab IC 1898: 1998(3) LLN 599: 2000(1) LLJ 279: 1999(95)

FJR 145.

33. Decision of Review Petition Before the Supreme Court cannot Stand in

Way of Reinstatement — K.S. Dhardathan v. Collector of Customs, 1988(1) SLJ 570

(CAT Mad).

34. Non-consultation with Public Service Commission — Non-consultation

with the Public Service Commission cannot be held to vitiate the orders impugned. B.C.

Das v. State of Assam, 1971(1) SCWR 793: AIR 1971 SC 2004: 1971 Supp SCR 477:

1971(2) SCC 168: 1971(2) SLR 756: 1971 Lab IC 1182: 1971(1) LLJ 576.

PROVISIONS REGARDING OFFICERS LENT TO STATE

GOVERNMENTS, ETC. R. 20

20. Provisions regarding officers lent to State Governments, etc.

where the services of a Government servant are lent by one department

to another department or to a State Government or an authority

subordinate thereto or to a local or other authority (hereinafter in this

rule referred to as “the borrowing authority”), the borrowing authority

shall have the powers of the appointing authority for the purpose of

placing such Government servant under suspension and of the

disciplinary authority for the purpose of conducting a disciplinary

proceeding against him—

Provided that the borrowing authority shall forthwith inform the

authority which lent the services of the Government servant (hereinafter

in the rule referred to as “the lending authority”) of the circumstances

leading to the order of suspension of such Government servant or the

commencement of the disciplinary proceeding, as the case may be.

(2) In the light of the findings in the disciplinary proceeding

conducted against the Government servant:—

(i) if the borrowing authority is of the opinion that any of the

penalties specified in clause (i) to (iv) of Rule 11 should

be imposed on the Government servant, it may, after


consultation with the lending authority, make such orders

on the case as it deems necessary:

Provided that in the event of a difference of opinion between the

borrowing authority and the lending authority, the services of the

Government servant shall be replaced back at the disposal of the lending

authority;

(ii) if the borrowing authority is of the opinion that any of the

penalties specified in clauses (v) to (ix) of Rule 11 should be imposed

on the Government servant, it shall replace his services at the disposal

of the lending authority and transmit to it the proceedings of the inquiry

and thereupon the lending authority may, if it is the disciplinary

authority, pass such orders thereon as it may deem necessary, or, if it is

not the disciplinary authority, submit the case to the disciplinary

authority which shall pass such orders on the case as it may deem

necessary;

Provided that before passing any such order, the disciplinary

authority shall comply with the provisions of sub-rules (3) and (4) of

Rule 15.

Explanation — The disciplinary authority may make an order

under this clause on the record of the inquiry transmitted to it by the

borrowing authority, or after holding such further inquiry as it may

deem necessary, as far as may be, in accordance with the Rule 14.

R. 21

21. Provisions regarding officers borrowed from State

Governments, etc — (1) Where an order of suspension is made or a

disciplinary proceeding is conducted against a Government servant

whose services have been borrowed by one department from another

department or from a State Government or an authority subordinate

thereto or a local or other authority, the authority lending his services

(hereinafter in this rule referred to as “the lending authority”) shall

forthwith be informed of the circumstances leading to the order of the

suspension of the Government servant or of the commencement of the

disciplinary proceeding, as the case may be.

(2) In the light in the findings in the disciplinary proceeding

conducted against the Government servant, if the disciplinary authority

is of the opinion that any of the penalty specified in clauses (i) to (iv) of


Rule 11 should be imposed on him, it may, subject to the provisions of

sub-rule (3) of Rule 15 and except in regard to a Government servant

serving in the Intelligence Bureau upto the rank of Assistant Central

Intelligence Officer, after consultation with the lending authority, pass

such orders on the case, as it may deem necessary:

(i) Provided that in the event of a difference of opinion

between the borrowing authority and the lending authority,

the services of the Government servant shall be replaced at

the disposal of the lending authority.

(ii) if the disciplinary authority is of the opinion that any of

the penalties specified in clauses (v) to (ix) of Rule 11

should be imposed on the Government servant, it shall

replace the services of such Government servant at the

disposal of the lending authority and transmit to it the

proceedings of the inquiry for such action, as it may deem

necessary.

COMMENTARY

S Y N O P S I S

1. Deputation: Meaning of ................................................................................................. 433

2. Employee on deputation, his legal position ................................................................... 433

3. Charge-sheet and suspension when on foreign service by parent Government .............. 434

4. Period of sparing services of officers lent ...................................................................... 434

5. Recall from deputation .................................................................................................. 434

6. Recall from foreign service before specified period, without consent of officer ............ 435

7. Reversion when on deputation by parent Department .................................................... 435

8. Reversion to parent office by borrowing authority without stigma ................................ 435

9. Reversion by borrowing authority as punishment .......................................................... 435

10. Appointment temporarily which could be terminated by 15 days notice - Whether

notice necessary for reversion to parent department ...................................................... 435

11. Termination while on deputation.................................................................................... 436

Rules 20(1) and 21(1)

12. Other authority ............................................................................................................... 436

13. Suspension by borrowing authority ................................................................................ 436

14. Disciplinary power of borrowing authority .................................................................... 436


15. Requirement of “Information” under proviso to sub-rule (1) of Rule20 ........................ 436

Rules 20(2) and 21(2)

16. Imposing of penalty ........................................................................................................ 437

17. Jurisdiction of borrowing authority to institute disciplinary proceeding after reversion

of person to parent department ....................................................................................... 437

18. Delegation of power of dismissal ................................................................................... 437

1. Deputation: Meaning of— The word “depute” which is a basic word from

which the noun “deputation” emanates means which the noun “deputation” emanates

means appoint or instructs someone to perform a task for which one is responsible. If

the word “deputation” itself is to be used as a noun, it means a person appointed to act

in an official capacity or a representative of the another official. Therefore, it will be

seen that the word “deputation” has a special meaning in the service jurisprudence and

is not used in the rules in its contrary dictionary parlance. M.V. Girija v. High Court of

Madras, 2002(3) SLR 397 Mad (DB).

Concept of "deputation" is well understood in service law and has a recognised

meaning. `Deputation” has a different connotation in service law and the dictionary

meaning of the word `deputation” is of no help. In simple words `deputation” means

service outside the cadre or outside the parent department. Deputation is deputing or

transferring an employee to a post outside his cadre, that is to say, to another

department on a temporary basis. After the expiry period of deputation the employee

has to come back to his parent department to occupy the same position unless in the

meanwhile he has earned promotion in his parent department as per Recruitment Rules.

Whether the transfer is outside the normal field of deployment or not is decided by the

authority who controls the service or post from which the employee is transferred. State

of Punjab v. Inder Singh, AIR 1998 SC 7: 1997 Supp (4) SCR 425: 1997(8) SCC 372:

1998(78) FLR 272: 1997(5) SLR 789: 1998(2) SLJ 113: 1998 Lab IC 133: 1998(1)

LLN 74.

2. Employee on Deputation, His Legal Position — Deputation can be aptly

described as an assignment of an employee (commonly referred to as the deputationist)

of one department or cadre or even an organisation (commonly referred to as the parent

department or lending authority) to another department or cadre or organisation

(commonly referred to as the borrowing authority). The necessity for sending on

deputation arises in public interest to meet the exigencies of public service. The concept

of deputation is consensual and involves a voluntary decision of the employer to lend

the services of his employee and a corresponding acceptance of such services by the

borrowing employer. It also involves the consent of the employee to go on deputation

or not. Umapati Choudhary v. State of Bihar, AIR 1999 SC 1948: 1999(4) SCC 659:

1999(3) JT 627: 1999 LIC 1979: 1999(2) SLR 606 (SC); See also State of Punjab v.

Inder Singh, 1997(8) SCC 372: AIR 1998 SC 7

An employee who is on deputation has no right to be absorbed in the service

where he is working on deputation. However, in some cases it may depend upon


statutory rules to the contrary. If rules provide for absorption of employees on

deputation then such employee has a right to be considered for absorption in accordance

with the said rules. Rameshwar Prasad v. Managing Director, U.P. Rajkiya Nirman

Nigam Ltd., 1999(5) SLR 203 (SC).

The Government service is a matter of status and not of contract and merely

because service of an employee are transferred, it does not mean that a contract has

come into existence with the employer to whom services have been transferred or with

whom he has been sent on deputation. Virtually he remains under the effective control

of the lending authority and his legal position continues to be one more of status than of

contract. Sohan Singh v. State of Punjab, AIR 1970 Pun 322 (FB); A.K. Srivastava v.

State of U.P., 1980(1) SLR 369.

The service could not be claimed by deputationist once he opted for permanent

absorption in the department. Union of India v. Onkar Chand, AIR 1998 SC 945:

1998(9) SCC 299: 1998 (1) JT 336: 1998(2) SLR 296: 1998 Lab IC 971: 1998(2) SCJ 125.

Unless the claim of the deputationist for permanent absorption in the

department where he works on deputation is based upon any statutory Rule, Regulation

or Order having the force of law, a deputationist cannot assert and succeed in any such

claim for absorption. The basic principle under lying deputation itself is that the person

concerned can always and at any time be repatriated to his parent department to serve in

his substantive position therein at the instance of either of the departments and there is

no vested right in such a person to continue for long on deputation or get absorbed in

the department to which he had gone on deputation. Kunal Nanda v. Union of India,

AIR 2000 SC 2076: 2000(5) SCC 362: 2000(6) JT 574: 2000(4) SLR 609 (SC); relying

upon Rameshwar Prasad v. M.D., U.P. Rajkiya Nirman Nigam Ltd., 1999(8) SCC 381:

1999(5) SLR 203 (SC).

Period of deputation having being elapsed deputationist cannot claim to

continue on deputation. Merely because the other deputationist had been allowed to

continue, the deputationist cannot have any legal right to continue on deputation unless

he is absorbed. P. Krishna Reddy v. Director, Mehdi Nawaj Jung Institute of Oncology

and Regional Cancer Centre, Red Hills, Hyderabad, 2001(4) SLR 447 AP (DB).

3. Charge-sheet and Suspension when on Foreign Service by Parent Government — Government is competent to charge-sheet and suspend its officer while

he is on foreign service. T.R. Sakhuja v. State of Punjab, 1973(2) SLR 599; Khemi Ram

v. State of Punjab, AIR 1976 SC 1737: 1976(3) SCC 699: 1976 Lab IC 1139: 1976 SLJ

414 (SC): 1976(2) SLR 239.

4. Period of Sparing Services of Officers Lent — While sparing the service

of any judicial officer to the Government it is open to the High Court to fix the period

during which he may hold any executive post. At the end of that period, the

Government is bound to allow him to go back to his parent department unless the High

Court agrees to spare his services for some more time. State of Orissa v. Sudhansu

Sekhar Misra, 1967(II) SCWR 845: AIR 1967 SC 647: 1968(2) SCJ 236.

5. Recall from Deputation — On the report of borrowing authority the

appellants was recalled and posted to his substantive post. No reduction in rank.


Joginder Singh v. State of Punjab, 1969 Cur LJ 58. The employee validly repatriated on

abolition of posts in borrowing department, can not claim to continue in service. Ram

Ganga Command Area Development Authority v. Sheetal Kumar Vaish, 2003 (2) SLR

766 SC.

6. Recall from Foreign Service before Specified Period, Without Consent of Officer — State Government having lent the services of its officer on deputation to

foreign service for a specified period can, before the expiry of the aforesaid period,

legally recall the officer unilaterally without the consent of the officer concerned. Fateh

Singh Chugha v. State of Punjab, AIR 1970 Pun 315; Sohan Singh v. State of Punjab,

ILR (1970) 1 Pun 468: AIR 1970 Pun 322 (FB); Palikoith Shayama Prasad v. Chief

Commr. Andaman Nicobar Islands, 1969 Lab IC 721: 73 Cal WN 939: 1970 SLR 161.

7. Reversion when on Deputation by Parent Department — A Government

servant on deputation can be reverted after being recalled. The parent Government has

no right to pass orders of his reversion and direct the other Government to post him on

the lower post. Sudershan Sood v. State of Punjab, 1969 Cur LJ 846: 1969 SLR 715.

8. Reversions to Parent Office by Borrowing Authority Without Stigma — The petitioner was on deputation. He was sent back to his parent officer as he lost

confidence and was not found to be suitable for the job. There was nothing in the order

whereby any stigma was cast upon him. Held, the impugned order cannot be said to

entail evil consequences and the lack of an enquiry would not stamp it with infirmity or

illegality. Nau Nihal Singh v. Union of India, 1971 Lab IC 1267: 1971(1) SLR 566

Delhi; S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184:

1976(1) SCC 236: 1975 Lab IC 1748: 1975(2) SLR 740: 1976 SLJ 271; Kalam Dass v.

Chief Electoral Officer, 1977(1) SLR 726.

The reversion to the parent department does not entail any punishment to a

Government servant. The provisions of Article 311 are not attracted. Gita Ram Gupta v.

Union of India, 1979 SLJ 727.

9. Reversion by Borrowing Authority as Punishment — The appellant was

reverted neither because of temporary post was abolished nor because he was found

unsuitable to continue. The parent department also did not want him back. The order of

reversion was passed in the nature of punishment. Held Article 311 will be attracted.

K.H. Phadnis v. State of Maharashtra, 1971(1) SCWR 532: AIR 1971 SC 998: 1971

Supp SCR 118: 1971(1) SCC 790: 1971(2) SLR 345: 1971 Lab IC 721: 1973(1) SCJ

420; C. Thiravian Pillai v. State of Kerala, 1976(2) SLR 395.

10. Appointment Temporarily which could be Terminated by 15 days

Notice: Whether Notice Necessary for Reversion to Parent Department — Respondent, a permanent employee of office of L.R. Punjab was appointed as

temporary A.S.O. in Government of India on terms and conditions that his services may

be terminated on 15 day”s notice. Subsequently he was appointed S.O. again in a

temporary capacity. By an Officer order he was asked to hand over charge of his office

and report for duty to L.R., Punjab immediately. The 15 days prior notice was not

required as neither such term appears from the letter of appointment as S.O. nor there is

anything to show that terms and conditions as A.S.O. would continue to apply to him as


S.O. Union of India v. Agya Ram, AIR 1977 SC 585: 1977(1) SCC 130: 1977 Lab IC

234: 1977(2) LLN 117: 1977(1) LLN 210: 1976(2) SLR 771.

11. Termination while on deputation— Temporary employee appointed for

two months sent on deputation. Extension of service by the borrowing department and

thereafter dispensing with the services on the ground that he was only on deputation,

held to be illegal. Urban Improvement Trust v. Labour Court, 2003 (1) SLR 222 Raj.

Rules 20(1) and 21(1)

12. Other Authority — The expression “other authority” occurring in Rule 20

would embrace within its ambit such a body corporate as the Food Corporation of India.

R.B. Varma v. Food Corporation of India, 1973 SLJ 109: 1972 SLR 751.

On transfer of an employee to Food Corporation under Section 12-A of Food

Corporation Act, the employee becomes an employee of the Food Corporation and no

link whatsoever of such a transferred employee is left with his parent department. His

service cannot be replaced at the disposal of his previous parent department under Rule

20. Rule 20 is applicable to the cases of deputationists only. A. Ahad v. Union of India,

1977(1) SLR 147.

13. Suspension by Borrowing Authority — The borrowing authority

exercised the powers of the appointing authority for the purpose of placing under

suspension the Government servants whose services are lent to it but that would not

make the order of the borrowing authority as one passed by the appointing authority.

R.B. Varma v. Food Corporation of India, 1973 SLJ 109: 1972 SLR 751 All.

14. Disciplinary power of borrowing authority — The office orders placing

the control over the entire staff on deputation, to the Officer of the borrowing

department. It was held that the disciplinary action by such authority was valid. State of

U.P. v. Ram Nareshilal, 1970 (3) SCC 173: 1970 SLR 819.

15. Requirement of “Information” under Proviso to Sub-rule (1) of Rule 20 — All that the borrowing authority is required to do is to inform the department which

lend the services of the Government servant that the Government servant has been

placed under suspension, and in the event of disciplinary proceedings being commenced

against him of the circumstances leading to the commencement of such proceedings.

The proviso does not require that the borrowing department, before passing an order of

suspension or before the commencement of the disciplinary proceedings should inform

the parent department either that a suspension order is going to be passed or that

disciplinary proceedings are proposed to be commenced against the Government

servant. The requirement of information being given to the parent department is not a

condition precedent to the passing of an order of suspension or to the commencement of

disciplinary proceedings against him. On information being received by the parent

department of the passing of an order of suspension of a Government servant whose

services had been lend, or of commencement of disciplinary proceedings, it has no

authority to recall the suspension order or to quash the proceedings which have been

commenced by the department with which his services are on loan. Disregard of the

requirement of the proviso directing the sending of information does not tender either a


suspension order or a disciplinary proceeding already commenced illegal or void.

Ramadhar Singh v. Superintendent of Central Excise, 1979 LLJ 651 All.

Rule 20(2) and Rule 21(2)

16. Imposing of Penalty — Rules 20(2) and 21(2) deal with the power to

impose the penalties referred to therein. If the penalty to be imposed is one of the major

penalties the power to impose such penalty shall lie only with the lending authority. If

the borrowing authority considers that the major punishment is called for after

completion of the enquiry, the person concerned shall be reverted to the lending

authority for such action as that authority may consider necessary. But, in the case of

punishments, other than major punishments, the borrowing authority itself can impose

those punishments, the only limitation being that the lending authority should be

consulted before imposing any such penalty. Khumukcham Chitrasen Singh v. Director

of Industries, Manipur, AIR 1969 Manipur 36; Amar Singh v. State of Haryana, 1972

Cur LJ 109; A.K. Srivastava v. State of U.P., 1980(1) SLR 369.

17. Jurisdiction of Borrowing Authority to Institute Disciplinary

Proceeding After Reversion of Person to Parent Department — Petitioner was an

Assistant Public Prosecutor and was appointed as temporary Judicial Second Class

Magistrate by transfer. On receipt of certain complaints against him when he was

serving as Judicial Second Class Magistrate, High Court directed his reversion to his

parent department and a departmental enquiry to be conducted against him. Petitioner

objected to the enquiry on the ground that he has already been reverted to his parent

department. Held, the High Court has got jurisdiction to disciplinary proceedings, hold

enquiry and give a finding even in respect of a person who has already been reverted

provided the allegations were in respect of his work and conduct before such reversion.

Petition was dismissed. T.S. Kannan v. High Court of Judicature of T.N., 1982 Lab IC 1822.

18. Delegation of Power of Dismissal — Whether a person has a lien in one

department or in other department, the Government is entitled, subject to the provisions

of Article 311(1), to delegate power of dismissal to any officer. If powers are so

conferred to dismiss persons on deputation, there is nothing wrong in it. State of U.P. v.

Ram Naresh Lall, AIR 1970 SC 1263; Ram Naresh Lal v. State of U.P., AIR 1967 All

384 Reversed.


PART VII APPEALS

ORDERS AGAINST WHICH NO APPEAL LIES

22. Orders against which no appeal lies — Notwithstanding

anything contained in this Part, no appeal shall lie against:—

(i) any order made by the President;

(ii) any order of an interlocutory nature or of the nature of 1[step-in-aid of] the final disposal of a disciplinary

proceeding, other than an order of suspension;

(iii) any order passed by an inquiring authority in the course of

an inquiry under Rule 14.

R. 23

ORDERS AGAINST WHICH APPEAL LIES

23. Orders against which appeal lies — Subject to the

provisions of Rule 22, a Government servant may prefer an appeal

against all or any of the following orders, namely:—

(i) an order of suspension made or deemed to have been made

under Rule 10;

(ii) an order imposing any of the penalties specified in Rule

11, whether made by the disciplinary authority or by any

appellate or 2[revising] authority;

(iii) an order enhancing any penalty, imposed under Rule 11;

(iv) an order which—

(a) denies or varies of his disadvantage his pay,

allowances, pension or other conditions of service

as regulated by rules or by agreement; or

(b) interprets to his disadvantage the provisions of any

such rule or agreement;

1 Subtituted by Notification No. 11012/8/94-Estt (A), dated 02-01-1996, for the

words “step-in-aid/or”. 2 Substituted for the word “reviewing” vide Notification No. 11012/15/84 Estt.

(A), dated 05-07-1985.

R. 23] APPEALS 439

(v) an order—

(a) stopping him at the efficiency bar in the time-scale

of pay on the ground of his unfitness to cross

the bar;

(b) reverting him while officiating in a higher service,

grade or post, to a lower service, grade or post,

otherwise than as a penalty;

(c) reducing or withholding the pension or denying the

maximum pension admissible to him under

the rules;

(d) determining the subsistence and other allowances to

be paid to him for the period of suspension or for

the period during which he is deemed to be under

suspension or for any portion thereof;

(e) determining his pay and allowances —

(i) for the period of suspension, or

(ii) for the period from the date of his dismissal,

removal, or compulsory retirement from service, or

from the date of his reduction to a lower service,

grade, post, time-scale or stage in a time-scale of

pay, to the date of his reinstatement or restoration

to his service, grade or post; or

(f) determining whether or not the period from the date

of his suspension or from the date of his dismissal,

removal, compulsory retirement or reduction to a

lower service, grade, post, time-scale or pay or

stage in a time-scale of pay to the date of his

reinstatement or restoration to his service, grade or

post shall be treated as a period spent on duty for

any purpose.

Explanation:— In this rule—

(i) the expression “Government servant” includes a person

who has ceased to be in the Government service;


(ii) the expression “pension” includes additional pension,

gratuity and any other retirement benefits.

COMMENTARY

S Y N O P S I S

1. Right of appeal, a statutory right .................................................................................... 440

2. Application of mind by appellate authority .................................................................... 440

3. Whether statutory remedy debars employee from invoking extra-ordinary jurisdiction

of High Court under Article 226 .................................................................................... 440

4. Exercise of disciplinary powers by Appellate Authority ................................................ 441

5. When appeal not competent ........................................................................................... 442

6. Supersession in matter of promotion .............................................................................. 442

7. Warning or censure — Appeal lies ................................................................................ 442

8. Explanation (i) is restricted for giving right to prefer appeal ......................................... 442

1. Right of Appeal, Statutory Right — Right of appeal is indeed a statutory

right and does not exist unless it is specifically conferred by law. State of Haryana v.

Baldev Krishna Sharma, 1970 SLR 500. See also N. Arunugam v. Union of India,

1994(7) SLR 77 (CAT Madras).

Under the rules there is only one right of appeal. The second appeal is merely a

representation. Chattar Singh v. Deputy Commissioner, Simla, 1982(1) SLR 163.

A transfer order is appealable. Without exhausting the remedy of appeal, the

officer transferred can not approach the CAT. V.B. Gupta v. Union of India, 1990(14)

ATC 333 (CAT New Delhi).

Where suspension order is passed on behalf of the President of India — (a) no

appeal against it is maintainable, (b) but only review is permissible. Rajendra Janko v.

Union of India, 1988(4) SLR 822 (CAT Jabalpur).

2. Application of mind by appellate authority — Appellate order passed

without application of mind and merely repeating order of disciplinary authority cannot

be sustained. Sujit Kumar v. Union of India, 1989(2) SLR 2 (CAT Calcutta).

Order passed by Disciplinary Authority for recovery of loss from delinquent

after disciplinary proceeding and dismissal from service. Appeal dismissed by

Appellate Authority by a non-speaking order. Held that the order of Appellate

Authority was illegal and accordingly it was set aside and remanded for

reconsideration. S. Ramanathan v. Chief Judicial Magistrate, 2001(5) JT 494: 2001(4)

SLT 473.

3. Whether Statutory Remedy Debars Employee from Invoking Extra-

ordinary Jurisdiction of High Court under Article 226 or Tribunal under

R. 23] APPEALS 441

Administrative Tribunals Act, 1985 — Though existence of alternate remedy of

appeal does not oust the jurisdiction of High Court under article 226 of the Constitution

yet declining to entertain the petition by High Court due to existence of alternate

remedy is not improper. Shashi Gaur v. N.C.T. of Delhi, 2000 (5) SLR 248 SC.

Employee can file writ, (1) when there is a complete lack of jurisdiction in the

office or authority to take the action impugned, or (2) where the order prejudicial to the

writ petitioner has been passed in violation of the principles of natural justice, or (3)

where the petitioner under the circumstances, felt that he was not likely to get the relief

from the appellate authority. M.R. Arjuna v. Union of India, 1971(1) SLR 40 Raj.

A person who proposes to seek redress from High Court in respect of some

alleged violation of the conditions of service or some justice which he has been made to

suffer in relation to his official career, can approach High Court under Article 226 of

the Constitution without obtaining the previous permission of any one. The presentation

of that petition need not be preceded by the approval of any official superior of the

Government servant. Nor can a rule prohibiting the presentation of a writ petition is that

way except with the previous approval of the official superior, be made by any one

under any of the statutory provisions. The jurisdiction of High Court is what may be

invoked by a civil servant unimpeded by any restriction, in the same way in which any

other litigant can invoke it. V.K. Parameswaran v. Union of India, 1982 Lab IC 383:

1982(1) SLJ 516 Kar.

A person, who is aggrieved by an order of the Commissioner, cannot be

permitted to abandon resort to the statutory remedy of appeal and to invoke the

constitutional jurisdiction of this Court. Held that, despite the existence of an

alternative legal remedy, the High Court may interfere in favour of a petitioner under

Article 227 of the Constitution, but the case in question held to be certainly not one of

such extraordinary cases. Cement Corporation of India Ltd., Charkhi Dadri v. Chander

Kala, 1999(5) SLR 92 P&H.

Ordinarily when statutory remedy is available to an aggrieved employee, the

Tribunal should refuse to entertain an application as provided in section 20 (1) of

Administrative Tribunals Act, 1985. G.K. Vaghela v. Union of India, 2000 (2) SLR

307Guj (DB).

4. Exercise of disciplinary powers by Appellate Authority— Services

terminated not by the disciplinary authority but by Appellate authority with no

provision for review or revision against the order of the appellate authority thus right of

appeal was denied to the delinquent. Though employee was entitled for reinstatement

and back wages in view of decision of Supreme Court in Surjit Ghosh v. Chairman &

Managing Director, United Commercial Bank,. JT 1995(2) SC 74 as the order of

punishment gets vitiated, held that the employee would not be entitled to any back wage

from the date of termination till the date of decision excepting the sum of Rs. 50,000/-

which has already been paid to him. Electronics Corporation of India v. G. Muralidhar,

2001(3) JT 549: 2001(1) LLJ 1343: 2001(4) SLT 286

Order of removal passed by the Disciplinary Authority was in conformity with

law. The then Chairman-cum-Managing Director of the Company acted as a


Disciplinary Authority as well as an Appellate Authority when he presided over and

participated in the deliberations of the meeting of the Board while deciding the appeal.

In a situation where such a dual function is discharged by one and the same authority,

unless permitted by an act of legislation or statutory provisions, the same would be

contrary to rule against bias. Where an authority earlier had taken a decision, he is

disqualified to sit in appeal against his own decision, as he already prejudged the matter

otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing

of an appeal would be an exercise in futility. Amar Nath Chowdhury v. Braithwaite and

Company Ltd., AIR 2002 SC 678: 2002(2) SCC 290: 2002(1) LLJ 1048: 2002(1) SCJ

268. [Financial Commer. (Taxation) Punjab v. Harbhajan Singh, 1996(9) SCC 281

relied on.]

5. When Appeal not Competent — Where no appeal was competent, it could

be dismissed in limine. Nalini Ranjan Sharma v. State of Haryana, 1973(2) SLR 143.

6. Supersession in Matter of Promotion — Such an order falls under Rule

23(iv) and appeal lies.

The old post is abolished and another candidate is appointed in newly created

post. Mahesh Kumar Mudgil v. State of U.P., 1998(1) SCJ 266.

7. Warning or Censure: Appeal Lies — It is not form of the order or the word

that is used or the nomenclature that is given that matters but really the substance of it.

Order showing petitioner guilty of misconduct and to contend that it merely

administered warning is unconvincing. Such a “warning” is “censure”. Appeal lies

against the order. Nadhan Singh v. Union of India, 1969 SLR 24.

8. Explanation (i) is Restricted for Giving Right to Prefer Appeal — The

explanation is restricted for giving the dismissed servant a right to prefer an appeal.

C.R. Bansi v. State of Maharashtra, AIR 1971 SC 786: 1971(3) SCR 236: 1970(3) SCC

537: 1971 Crl LJ 662: 1971 SCC(Cr) 143: 1971 CAR 105.

APPELLATE AUTHORITY R. 24

24. Appellate Authority — (1) A Government servant, including

a person who has ceased to be in Government service, may prefer an

appeal against all or any of the orders specified in Rule 23 to the

authority specified in this behalf either in the Schedule or by a general

or special order of the President or, where no such authority is

specified—

(i) where such Government servant is or was a member of a Central

Service, Group “A” or Group B or holder of a Central Civil Post, Group

A or Group B —

(a) to the appointing authority, where the order appealed

against is made by an authority subordinate to it; or

R. 24] APPEALS 443

(b) to the President where such order is made by any other

authority;

(ii) where such Government servant is or was a member of a

Central Civil Service, Class III or Class IV or holder of a Central Civil

Post, Class III or Class IV to the authority to which the authority making

the order appealed against is immediately subordinate.

(2) Notwithstanding anything contained in sub-rule (1) —

(i) an appeal against an order in a common proceeding held

under Rule 18 shall lie to the authority to which the

authority functioning as the disciplinary authority for the

purpose of that proceeding is immediately subordinate:

Provided that where such authority is subordinate to the President

in respect of a Government servant for whom President is the appellate

authority in terms of sub-clause (b) of clause (i) of sub-rule (1), the

appeal shall lie to the President.

(ii) where the person who made the order appealed against

becomes, by virtue of his subsequent appointment or

otherwise, the appellate authority in respect of such order,

an appeal against such order shall lie to the authority to

which such person is immediately subordinate.

(3) A Government servant may prefer an appeal against an order

imposing any of the penalties specified in Rule 11 to the President,

where no such appeal lies to him under sub-rule (1) or sub-rule (2), if

such penalty is imposed by any authority other than the President, on

such Government servant in respect of his activities connected with his

work as an office-bearer of an association, federation, or union,

participating in the Joint Consultation and Compulsory Arbitration

Scheme.

COMMENTARY

S Y N O P S I S

1. Appellate Authority must inspire confidence ................................................................... 444

2. Recording of reasons ........................................................................................................ 444

3. Disposal of appeal to President by Minister ..................................................................... 444


1. Appellate Authority must Inspire Confidence — Merely providing an

appeal by itself may not be very reassuring but the appellate authority must inspire

confidence. Lt. Col. Prithi Pal Singh Bedi v. Union of India, 1982(2) SLJ 582 (SC).

2. Recording of reasons— The appellate authority”s decision cannot be said to

be vitiated merely because reasons recorded in the file or the gist thereof are not

incorporated in the impugned order. At best, it is a mere irregularity. Ch. Nagender v.

Registrar (Management) High Court of A.P., 1999(5) SLR 243 AP (DB).

3. Disposal of Appeal to President by Minister — Disposal of appeal to the

President by the Minister is a proper and legal disposal of the appeal to the President

who has acted on the advice of the Minister. Union of India v. Sripati Ranjan, 1975(2)

SLR 697; T. Jayant v. Union of India, 1980 SLJ 438: 1980(2) SLR 507.

Appellate authority must decide all points raised in the appeal. If it does not do

so, the order is not sustainable. N.K. Varadarajan v. Senior Deputy Director General,

1991(1) SLR 667, 668, 670 para 56 (CAT Bangalore).

Appellate authority must apply its mind and give reasons for upholding the

order of the disciplinary authority. Merely saying that the procedure prescribed in the

rules has been complied with that of the findings are justified and the penalty imposed

is adequate is not enough. P. Muniswamy v. Union of India, 1988(7) SLR 137, 139,

para 4 (CAT Madras).

PERIOD OF LIMITATION OF APPEALS R. 25

25. Period of limitation of appeals — No appeal preferred under

this part shall be entertained unless such appeal is preferred within a

period of forty five-days from the date on which a copy of the order

appealed against is delivered to the appellant:

Provided that the appellate authority may entertain the appeal after

the expiry of the said period, if it is satisfied that the appellant had

sufficient cause for not preferring the appeal in time.

COMMENTARY

S Y N O P S I S

1. Appellate Authority Rejected Appeal on Grounds of Limitation ................................... 444

2. Sufficient Cause ............................................................................................................. 445

1. Appellate Authority Rejected Appeal on Grounds of Limitation: Power of High Court under Article 226 — Where the appellate authority rejected the

memorandum of appeal on ground of limitation, held, so long as the discretionary

R. 25] APPEALS 445

power vested in the proper authority has been exercised by proper application of mind,

High Court under Article 226 of Constitution cannot interfere with that discretionary

exercise of power. V. Duragappa v. Chief Engineer and Disciplinary Authority, K.E.B.,

AIR 1980 Ker 167. See also Union of India v. Jeet Singh, 1987(1) SLR 337 All.

2. Sufficient Cause— Supreme Court in Collector, Land Acquisition,

Anantnag v. Mst. Katiji, AIR 1987 SC 1353: 1987(3) SCC 107: 1987(2) SCR 387:

1988(19) ECR 565: 1987(167) ITR 471: 1987(28) ELT 185: 1987(62) Comp Cas 370:

1987(66) STC 228 held that the expression “sufficient cause” employed by the

legislature in the Limitation Act is adequately elastic to enable the Courts to apply the

law in a meaningful manner which sub-serves the ends of justice that being the life

purpose for the existence of the institution of courts. It was further observed that a

liberal approach is adopted on principle as it is realised that:

“1. Ordinarily a litigant does not stand to benefit by lodging an appeal

late.

2. Refusing to condone delay can result in a meritorious matter being

thrown out at the very threshold and cause of justice being

defeated. As against this when delay is condoned the highest that

can happen is that a cause would be decided on merits after

hearing the parties.

3. “Every day”s delay must be explained” does not mean that a

pedantic approach should be made. Why not every hour”s delay.

every second”s delay ? The doctrine must be applied in a rational

common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted

against each other, cause of substantial justice deserves to be

preferred for the other side cannot claim to have vested right in

injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or

on account of culpable negligence, or on account of mala fides. A

litigant does not stand to benefit by resorting to delay. In fact he

runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its

power to legalize injustice on technical grounds but because it is

capable of removing injustice and is expected to do so.”

It is submitted that the same principles should apply in dealing with

condonation of delay in filing the appeal under Rule 25. In fact Supreme Court in a

subsequent case relying on above observations has noted the effect of dismissal of

appeal on technical ground of limitation, in these words—

“Dismissing the appeals on technical grounds of limitation would

not, in any way, advance the interests of justice but admittedly,

result in failure of justice as the impugned judgements are likely

to affect not only the parties before us, but hundreds of other


persons who are stated to be senior than the respondents. The

technicalities of law cannot prevent us from doing substantial

justice and undoing the illegalities perpetuated on the basis of the

impugned judgements. However, while deciding the petitions, the

reliefs in the case can appropriately be moulded which may not

amount to unsettle the settled rights of the parties on the basis of

judicial pronouncements made by the Courts regarding which the

State is shown to have been careless and negligent.”

See State of Bihar v. Kameshwar Prasad Singh, AIR 2000 SC 2306: 2000(9)

SCC 94: 2000(5) JT 389: 2000 Lab IC 2379: 2000(4) SLR 8 (SC).

R. 26

26. Form and contents of appeal — (1) Every person preferring

an appeal shall do so separately and in his own name.

(2) The appeal shall be presented to the authority to whom the

appeal lies, a copy being forwarded by the appellant to the authority

which made the order appealed against. It shall contain all material

statements and arguments on which the appellate relies, shall not contain

any disrespectful or improper language, and shall be complete in itself.

(3) The authority which made the order appealed against shall, on

receipt of a copy of the appeal, forward the same with its comments

thereon together with the relevant records to the appellate authority

without any avoidable delay, and without waiting for any direction from

the appellate authority.

COMMENTARY

S Y N O P S I S

1. Competent authority to accept all appeals in case order appealed against is

appealable ...................................................................................................................... 446

2. Punishing authority not to make such comments which may influence mind of

appellate authority ......................................................................................................... 447

1. Competent Authority to Accept All Appeals in Case Order Appealed

Against is appealable — The departmental appeals have been intended to be availed of

by all civil servants who have been punished and the competent authority should

entertain the appeals in all such cases. Laxmiben Girdhari Lal Patel v. State of Gujarat,

1971(2) SLR 695. See also M.P. Roy v. Union of India, 1990(3) SLR 339 (CAT Patna);

Ram Lagan v. Union of India, 1990(12) ATC 257 (Calcutta).

R. 27] APPEALS 447

2. Punishing authority not to make such comments which may influence

mind of appellate authority — It is not competent for the authority which made the

order appealed against to make such comments or remarks which might tend to

influence the mind of the appellate authority. Union of India v. B.S. Mishra, 1973(2)

SLR 430 (Raj).

CONSIDERATION OF APPEAL R. 27

27. Consideration of appeal — (1) In the case of an appeal

against an order of suspension, the appellate authority shall consider

whether in the light of the provisions of Rule 10 and having regard to

the circumstances of the case, the order of suspension is justified or not

and confirm or revoke the order accordingly.

(2) In the case of an appeal against an order imposing any of the

penalties specified in Rule 11 or enhancing any penalty imposed under

the said rules, the appellate authority shall consider—

(a) whether the procedure laid down in these rules has been

complied with and if not, whether such non-compliance

has resulted in the violation of any provisions of the

Constitution of India or in the failure of justice;

(b) whether the findings of the disciplinary authority are

warranted by the evidence on the record; and

(c) whether the penalty or the enhanced penalty imposed is

adequate, inadequate or severe;

and pass orders—

(i) confirming, enhancing, reducing, or setting aside

the penalty; or

(ii) remitting the case to the authority which imposed or

enhanced the penalty or to any other authority with

such direction as it may deem fit in the

circumstances of these cases;

Provided that—

(i) the Commission shall be consulted in all cases

where such consultation is necessary;


(ii) if such enhanced penalty which the appellate

authority proposes to impose is one of the penalties

specified in clauses (v) to (ix) of Rule 11 and an

inquiry under Rule 14 has not already been held in

the case, the appellate authority shall, subject to the

provisions of Rule 19, itself hold such inquiry or

direct that such inquiry be held in accordance with

the provisions of Rule 14 and thereafter, on a

consideration of the proceedings of such inquiry

make such orders as it may deem fit;

(iii) if the enhanced penalty which the appellate

authority proposes to impose is one of the penalties

specified in clause (v) to (ix) of Rule 11 and an

inquiry under Rule 14 has already been held in the

case, the appellate authority shall, make such orders

as it may deem fit 1[after the appellate has been

given a reasonable opportunity of making a

representation against the proposed penalty]; or

(iv) no order imposing an enhanced penalty shall be

made in any other case unless the appellant has

been given a reasonable opportunity, as far as may

be, in accordance with the provisions of Rule 16, of

making a representation against such enhanced

penalty.

(3) In an appeal against any other order specified in Rule 23, the

appellate authority shall consider all the circumstances of the case and

make such orders as it may deem just and equitable.

COMMENTARY

S Y N O P S I S

1. Appellate authority to deal with points raised and to pass speaking order ..................... 449

2. Appellate authority to follow principles of natural justice ............................................. 449

3. Appellate authority to give reasons in the order ............................................................. 452

4. Appellate authority whether to give reason when he dismisses the appeal .................... 452

1 Inserted by Notification No. 11012/8/94-Estt. (A) dated 02-01-1996.

R. 27] APPEALS 449

5. Appeal to State Government - Authority must give reasons .......................................... 453

6. Order of appellate authority should be a speaking order ................................................ 453

7. Personal hearing - Opportunity for by appellate authority ............................................. 454

8. Expression of opinion by appellate authority before deciding appeal ............................ 454

9. Case independently considered ...................................................................................... 454

10. Appellate authority to apply mind independently .......................................................... 454

11. Evidence destroyed in fire: Orders based on enquiry report quashed ............................. 455

12. Enhancement of penalty ................................................................................................. 455

13. Appeal against minor penalty imposed under Rule 16 - Whether appellate authority

can enhance the penalty to a major penalty .................................................................... 455

14. Appellate authority to consider question of quantum of penalty .................................... 455

15. Appellate authority ordering a de nova enquiry - Order of dismissal to be deemed

quashed .......................................................................................................................... 455

16. Confirmation of a void order in appeal .......................................................................... 456

17. Minor irregularity in conducting enquiry ...................................................................... 456

18. Hearing of appeal to the President.................................................................................. 456

19. Punishing authority not to make such comments which may influence mind of

appellate authority .......................................................................................................... 456

CONSIDERATION OF APPEAL

1. Appellate Authority to Deal with Points Raised and to Pass Speaking Order — A mandatory and statutory duty has been cast on the appellate authority to

consider the appeal and deal with the points raised and pass a speaking order thereon.

Order of appellate authority is to be quashed if he has not passed order in accordance

with the requirements of the Rule. Jagan Nath v. Quarter Master General, 1971(1) SLR

810 (Delhi); Kripal Singh v. State of Rajasthan, 1980(2) SLR 717: 1980 SLJ 598. See

also T.T. Vinsalarajan v. Kerala, Public Service Commission, 1988(1) SLR 523 (Ker.).

Order passed by Disciplinary Authority for recovery of loss from delinquent

after disciplinary proceeding and dismissal from service. Appeal dismissed by

Appellate Authority by a non-speaking order. Held that the order of Appellate

Authority was illegal and accordingly it was set aside and remanded for

reconsideration. S. Ramanathan v. Chief Judicial Magistrate, 2001(5) JT 494: 2001(4)

SLT 473.

2. Appellate Authority to Follow Principles of Natural Justice — (i) The

appellate authority has to follow the principles of natural justice. It has not only to do

justice, but should appear to do justice, and should not allow the opinion of other

persons to operate on his mind, but it has to form an independent opinion of its own

without looking to the opinion regarding the merits expressed by others. Union of India

v. B.S. Misra, 1973(2) SLR 430 (Raj); B.C. Thangkhiew v. Union of India, 1973(2) SLR

445: 1973 SLJ 1021; Nathaniel Ghosh v. Union Territory of Arunachal Pradesh,


1980(2) SLR 733. See also N. Ramulu v. Scientific Advisor to Minister of Defence,

1994(4) SLR 534 (CAT Hyderabad).

(ii) Natural justice is a vary elastic term. Its rules very from tribunal to

tribunal. The question whether or not any rules of natural justice had been contravened

should be decided not under any preconceived notions, but in the light of the statutory

rules and provisions. Nagendra Nath Bora v. Commissioner of Hill Division, AIR 1958

SC 398: 1958 SCJ 798.

In a case decided by the Central Administrative Tribunal, Guwahati, Bankim

Chaudhary v. Union of India, 1991(16) ATC 658, it has been held that where the

Inquiry Officer finds some of the charges partly true, one charge not proved and other

wholly proved and the punishing authority without giving reasons, imposes punishment

on the ground that the Inquiry Officer had held all the charges proved, the punishment

is bad and a non-speaking order of the appellate authority upholding such punishment is

also bad. Bankim Chaudhary v. Union of India, 1991(16) ATC 658. The case related to

employees of the Indian Council of Agricultural Research.

Appellate authority must not only give bearing to the Government servant

concerned but must also give reasons. Bankim Chaudhary v. Union of India, 1991(16)

ATC 658. The Tribunal referred R.P. Bhatt v. Union of India, AIR 1986 SC 1040: 1985

Supp(1) SCR 947: 1986(2) SCC 651: 1986 Lab IC 790: 1986 ATC 37: 1985(3) SLR

742: 1986(1) SLR 470 & 775: 1986(1) SLJ 383: 1986(1) ATR 149: 1986(52) FLR 354,

as to the meaning of the word “consider” in Rule 27, CCS Rules. Further, it quoted

from Ram Chander v. Union of India, AIR 1986 SC 1173: 1986(2) SCR 980: 1986(3)

SCC 103: 1986 Lab IC 885: 1986(1) ATC 47: 1986(2) LLJ 34: 1986(53) FLR 191:

1986(2) SLJ 249: 1986(2) SLR 608: 1986(2) ATR 252, the following passage in a case

relating to rule 22(2) of the Railway Servants (Discipline and Appeal) Rules, 1968:—.

“Such being the legal position, it is of utmost importance after the Forty-second

Amendment as interpreted by the majority in Union of India v. Tulsiram Patel,

1985(3) SCC 398: 1985 SCC (L&S) 672: AIR 1985 SC 1416: 1985 Supp(2)

SCR 131: 1985(3) SCC 398: 1985(3) Comp LJ 45: 1985(2) SLR 576: 1985(2)

SLJ 145, that the appellate authority must not only give a hearing to the

Government servant concerned, but also pass a reasoned order dealing with the

contentions raised by him in the appeal. We wish to emphasise that the

reasoned decisions by Tribunals, such as Railway Board”s present case will

promote public confidence in the administrative process. An objective

consideration is possible only if the delinquent servant is heard and given a

chance to satisfy the authority regarding the final orders that may be passed on

appeal. Considerations of fair play and justice also require that such a personal

hearing should be given”.

Appellate authority must give personal hearing, even if an applicant did not ask

for it. Ram Singh v. Union of India, 1988(6) SLR 218, 233 para 7 (CAT Chandigarh),

Ram Chander v. Union of India, ATR 1986(2) SC 252.

Proceedings under Central Civil Services (Pension) Rules, 1972 are quasi

judicial in nature. Appellate authority is under obligation to record reasons, after

R. 27] APPEALS 451

dismissing the appeal. To dismiss the appeal by saying “there is no merit in the appeal”

is no compliance with the rules. Such order is illegal. M. Kali Muthu v. Commandant,

Defence Services Staff College, Wellington, 1988(4) SLR 725 (CAT Madras).

The appellate authority should not satisfy itself merely about the propriety of

the punishment. It must also consider whether the proper procedure has been followed

and if not whether there has been any failure of justice. It must also consider whether

the findings of the disciplinary authority are warranted by the evidence. [R.P. Bhatt v.

Union of India, 1986(1) SLR 470 (SC); Dr. Anil Kapur v. CSIR, 1990(4) SLR 378

(CAT Chandigarh).

Appellate authority is competent to remand case for de nova proceedings to the

disciplinary authority from the stage of cross-examination of Prosecution Witness No.

1. This is not prohibited by Rule 126, P&T Manual or by Rule 27(2)(c), CCS (CCA)

Rules. What Rule 27(2)(c) prohibits is an order which both, confirms or alters the

penalty and remands the case J. Shamdev v. Union of India, 1990(3) ATC 85

(Hyderabad).

The word “consider” in Rule 27(2) of the CCS (CCA) Rules casts on the

appellate authority an obligation to give reasons by applying its mind. A mechanical

reproduction of the provisions of the rule without marshalling the evidence to sustain

the finding of the disciplinary authority will not cure the legal flaw in the appellate

order. R.P. Bhatt v. Union of India, 1986(1) SLR 470 (SC); Ram Chandra v. Union of

India, ATR 1986(2) SC 252: 1986(2) SLR 608; C. Sukumuran v. Director General,

ICAR, 1990(7) SLR 249 CAT (Ern).

Appellate authority hearing the appeal against imposition of penalty imposed as

a result of disciplinary proceedings is under obligation to pass a speaking order while

dismissing the appeal. Failure to do so makes the order illegal. J.C. Mehta, Supdt.

Engr., P.G.I., Chandigarh v. Post Graduate Institute of Medical Education and

Research, Chandigarh, 1988(4) SLR 768 (P&H).

It is the duty of the appellate authority:

(a) to discuss thoroughly the procedural aspects as well as the justness of

the findings of the disciplinary authority with reference to the

admissible evidence;

(b) to discuss the point raised in the appeal; and.

(c) to give a definite conclusion that (i) the charge levelled against the

employee has been established and (ii) that the penalty is appropriate

and does not require enhancement or interference.

H.P. Kahali v. Union of India, 1989(7) SLR 786, 791 (CAT Calcutta).

Where the disciplinary authority imposed punishment of reduction to lower

stage for one year and the appellate authority enhanced the punishment and ordered

dismissal by a non-speaking and unreasonable order, the order is illegal. Sushil Shekhar

Mondal v. Union of India, 1988(7) SLR 164 (CAT Calcutta).


3. Appellate Authority to Give Reasons in the Order — Rule 27(2) obligates

an appellate authority to follow the provisions of clauses (a), (b) and (c). The

expression “shall consider” and “pass order” are enough to indicate the intention of law

that the authority must give reasons. The authority is bound to give reasons where the

validity of the decision is challenged by a delinquent that (a) there are procedural

illegalities, and/or (b) the findings are not warranted by the evidence on record, and/or

(c) the penalty is much too severe. The High Courts of this country and the Supreme

Court have time and again emphasised that the appellate authorities must give reasons

and there should be some discussion of the evidence on record. An appellate authority

has a legal duty to deliberate about and ponder over; carefully examine the case of the

appellant on merit and adjudge it before confirming, enhancing, reducing or setting

aside the penalty. Nathaniel Ghosh v. Union Territory of Arunachal Pradesh, 1980(2)

SLR 733; Dr. Gopeswar Dutta v. Union of India, 1982(1) SCR 857: 1982(2) SLJ 207.

The appellate authority has to consider all the relevant factors while disposing

of an appeal i.e. the relevant factors as set out in clause (a), (b) & (c) of Rule 27(2) and

a decision of Appellate Authority merely considering clause (c) about the adequacy of

penalty imposed, does not meet the requirement of the provision. The Supreme Court

has however observed that the proceedings no doubt are quasi judicial in nature but

having regard to the manner in which these enquiries are conducted, no obligation can

be imposed upon State Government to record reasons. R.P. Bhatt v. Union of India,

AIR 1986 SC 1040: 1986 (1) SLR 470: 1986 (1) SLJ 383. similar are the observations

of High Court of Punjab & Haryana in respect of Rules as applicable in Punjab and

which are pari material with this rule. See Municipal Corporation, Ludhiana v.

Surinder Kumar, 2000 (5) SLR 649 P&H (DB).

4. Appellate Authority Whether to Give Reasons when he Dismisses the

Appeal — If the appellate authority dismisses the appeal he need not give more reasons

than his agreement with the order of the punishing authority as the order of punishing

authority would be containing the reasons but if some material which was not present

before the punishing authority is urged before the appellate authority then he would

have to give some reasons as to what he thought of the new material brought before him

even though he may simply agree with the punishing authority as to its conclusion on

the material already seen by him. Director of Postal Services v. Daya Nand, 1972 SLR

325 (FB) (Delhi). In this case the reasons for imposing the punishment were the reasons

on which the conduct of the employee led to his conviction by the Criminal Court. The

view of other High Courts, however, is that the order of appellate authority in which

reasons for upholding the order of the original authority are not recorded, is liable to be

quashed.

Irukuvaijula Subhrahamnyam v. Scretary, 1968 SLR 812; Mohinder Singh v.

State of Punjab, 1968 Cur LJ 476; Vijay Singh Yadava v. State of Haryana, 1971(1)

SLR 720.

The Lt. Governor of Arunachal Pradesh as appellate authority passed the

impugned order which reads:—

“The appeal is rejected”.

R. 27] APPEALS 453

Held, “It is surprisingly bold order. How could so many live questions posed go

unanswered? The order is as silent as the dead. The impugned order is invalid. The

appellate authority has miserably failed to comply with the legal requirements of stating

reasons in its order”. Nathaniel Ghosh v. Union Territory of Arunachal Pradesh,

1980(2) SLR 733.

Where the order of appellate authority was in the following terms:

“I have gone through the records of the case and find that the grounds of appeal

put forward by Sri…… are not tenable. I have come to the conclusion that the findings

of and the penalty imposed by the disciplinary authority are warranted by the evidence

on record. I, therefore, reject the appeal of Sri………”, held, that the contents of Rule

27 have not been followed in passing the appellate order and the said order is quashed.

Doraiswamy v. Union of India, 1980 SLJ 385 (Kar).

Mr. Appellate Authority please note: “Absence of reasons multiply writ

proceedings in courts, do not create unnecessary litigation between your subordinate

and the Government”.

The appellate authority’s decision cannot be said to be vitiated merely because

reasons recorded in the file or the gist thereof are not incorporated in the impugned

order. At best, it is a mere irregularity. Ch. Nagender v. Registrar (Management) High

Court of A.P., 1999(5) SLR 243 AP (DB).

5. Appeal to State Government: Authority must give Reasons — Where

from the material on the record it cannot be determined as to who considered the appeal

addressed to the State Government and what was considered by the authority exercising

power on behalf of the State Government, it was held that the practice of the executive

authority dismissing statutory appeals against order which prima facie seriously

prejudice the rights of the aggrieved part without giving reasons is a negation of the

rule of law. Order quashed. Mahabir Prasad Santosh Kumar v. State of U.P., AIR 1970

SC 1302: 1971(1) SCR 201: 1970(1) SCC 764: 1970(1) SCWR 713: 1971(1) SCJ 256.

6. Order of Appellate Authority should be a Speaking Order — To

understand the approach of the punishing authority and also the mind of the appellate

authority and grounds on which the impugned orders have been passed, it is necessary

that the order should be a speaking order and should give the grounds on which it has

been passed. Guranditta Mal v. State of Haryana, 1967 Cur LJ 182: 1969 SLR 91;

Mohinder Singh v. State of Punjab, 1968 Cur LJ 476: 1968 SLR 470; State of Gujarat

v. Patel Raghav Nath, AIR 1969 SC 1297: 1970(1) SCR 335: 1969(2) SCC 187; Jagan

Nath v. Quarter Master General, 1971(1) SLR 810; Cheda Lal Jha v. Union of India,

1973 SLJ 834; Madan Lal Sethee v. Union of India, 1979(3) SLR 93: 1975(2) SLR 286;

Bhagwanti Devi v. State of Haryana, 1982(1) SLR 29.

The order must be in conformity with the provisions of Rule 27. Kripal Singh

v. State of Rajasthan, 1980 SLJ 598: 1980(2) SLR 717; S. Doraiswamy v. Union of

India, 1980 SLJ 385 (Kar).


Appellate order must discuss the points raised in the appeal. A non-speaking

order made without application of mind is not sustainable. T.D. Sathya Kumar v.

Director, R & D Organisation, 1989(7) SLR 180 (CAT Bangalore).

7. Personal Hearing: Opportunity for by Appellate Authority — In Dharani

Mohan Barman v. State of Assam, AIR 1963 Assam 183, it was held that normal right

of an appellate to be heard in support of his appeal, before the same is rejected, should

prevail. In Girish Chandra Goswami v. A.K. Roy, AIR 1968 Assam 52, it was held that

in a statutory appeal the parties must be given a hearing. Delhi and Gujarat High

Courts, however, did not subscribe to the view of Assam High Court. In Bhagat Ram v.

Union of India, 1968 DLT 495: AIR 1968 Delhi 269, It was held that nowhere in these

Rules a personal hearing to the appellate is provided nor has any right been conferred

on him to claim such a hearing. If the provisions of Article 311 of Constitution have

been fully complied with there is no just occasion for a Government servant to raise any

further grievance and to claim any further hearing. No opportunities beyond those

prescribed by sub-clause (2) of Article 311 can be claimed by a Government servant. At

the stage of appeal under the Rules it is a matter for the appellate authority to satisfy

itself that the necessary provisions of law have been fully complied with and then after

taking into consideration all the circumstances of the case pass such order as it deemed

just and equitable. See also State of Gujarat v. Pagi Bhurabhai Rumalbhai, AIR 1969

Gujarat 260 and Madan Lal Sethee v. Union of India, 1975(2) SLR 286: 1979(3) SLR

93. Amarjit Singh v. Punjab Warehousing Corporation, 1991(1) SLR 30 (P&H).

8. Expression of Opinion by Appellate Authority before Deciding Appeal— Appellate authority long before dismissing the appeal made up his mind and expressed

his opinion adverse to the petitioner. Hearing of appeal held nothing but farce.

Mohinder Singh v. State of Punjab, 1968 Cur LJ 476.

9. Case Independently Considered — Even assuming that there was any

defect in the enquiry proceedings, as the punishing authority and the appellate

authority, have independently considered the matter and found the respondent guilty on

the evidence on record, it must be held that in the circumstances of the case there has

been no violation of the principles of natural justice when the order of dismissal was

passed. State of Assam v. Mahendra Kumar Das, AIR 1970 SC 1255: 1970(2) SCJ 659.

See also Ram Lagan v. Union of India, 1990(12) ATC 257 (Calcutta).

10. Appellate Authority to Apply Mind Independently — Where the

appellate authority did not pass any order except initialling the notes put up by the

office after the opinion from the Law Department had been obtained, held, this is not an

independent order after application of his mind by the authority. This order is not

sustainable. Municipal Committee v. State of H.P., 1979(2) SLR 171; Nathaniel Ghosh

v. Union Territory of Arunachal Pradesh, 1980(2) SLR 733. See also M.P. Roy v.

Union of India, 1990(3) SLR 339, (Cal Pat).

(i) Law Department should not give their advice in such cases and it should be

left to the Appellate Authority to apply his mind and to decide the appeal

independently. The practice of giving notes by the office is also wrong as it prejudices

the mind of Appellate Authority, who is a quasi judicial authority.

R. 27] APPEALS 455

11. Evidence Destroyed in Fire: Based on Enquiry Report Quashed —

Inquiry Officer found some of the charges established. The Disciplinary Authority

issued a show cause notice proposing a penalty of compulsory retirement. The

petitioner made a request to permit him to inspect the relevant file and record of the

departmental enquiry which was refused. Thereafter, petitioner filed his reply. The

Disciplinary Authority passed impugned order of compulsory retirement. The appeal

filed by petitioner was rejected. The file of Inquiry Officer which contained the

statements of witnesses had gutted before the show cause notice issued by the

Disciplinary Authority. Held, since the Disciplinary Authority and the Appellate

Authority had no material before them to come to independent finding, their orders

were quashed being based on no evidence. Crattar Singh v. Deputy Commissioner,

Simla, 1982(1) SLR 163 (HP).

12. Enhancement of Penalty — If the appellate authority wants to take into

account the charges on which the employee had been acquitted by the enquiry officer he

should give a proper notice to the employee, intimating to him that those charges would

also be considered and opportunity be afforded of explaining them. Narayan Misra v.

State of Orissa, 1969(1) SCWR 829: 1969 SLJ 657. See also R.P. Bhalla v. Union of

India, ATR 1986(1) CAT 149.

13. Appeal Against Minor Penalty Imposed under Rule 16: Whether

Appellate Authority can Enhance the Penalty to a Major Penalty — The Appellate

Authority, no doubt, has the power to enhance the penalty to one of the major penalties

specified in clauses (v) to (ix) of Rule 11, in appropriate cases; but that certainly cannot

be done without strictly following the procedure prescribed in that behalf in the Proviso

(ii) to Rule 27(2) read with Rule 14 of the Rules. The Disciplinary Authority or the

Appellate Authority, as the case may be, should caution the delinquent officer that

enquiry under Rule 14 that was being conducted into the charges levelled against him

might end in the imposition of one of the major penalties specified in clauses (v) to (ix)

of Rule 11. P.K. Raghavan v. Senior Superintendent, R.M.S., 1980(3) SLR 213.

14. Appellate Authority to Consider Question of Quantum of Penalty —

Sub-clause (c) of clause (2) of Rule 27 requires expressly, the appellate authority to

consider “whether the penalty or the enhanced penalty imposed is adequate, inadequate

or severe” and pass orders — “confirming, enhancing, reducing or setting aside the

penalty…….”, with an express statutory requirement like this, it would be necessary for

an appellate authority to show that it was complied with. The order was quashed and the

appellate authority was directed to consider the pleas of the petitioner in respect of the

quantum of punishment and pass suitable orders. K.M. Agrahari v. Lt. Governor, Delhi

Administration, 1980(3) SLR 555: 1981(1) SLJ 216.

15. Appellate Authority Ordering a de nova Enquiry: Order of Dismissal to

be Deemed Quashed — Appeal filed against the order of dismissal. Appellate authority

remitted case for the de nova proceedings. It would be wrong to come to the conclusion

that the original dismissal order would still survive after the order in appeal. Petitioner

is entitled to the benefits following from the order in appeal and must be held to be

deemed to be in service subject, however, to fresh enquiry in accordance with Rules.

M.R. Subramanyam v. Commandant, 1980 SLJ 280: 1980(1) SLR 123.


16. Confirmation of a Void Order in Appeal — The rejection of appeal by a

higher authority against dismissal is not equivalent to a dismissal by that authority.

Where the original order is without jurisdiction and as such void and inoperative, the

order passed on appeal could not cure the initial defect. Mysore State Road Transport v.

Mirza Khasim Ali, 1977(1) SLR 237 (SC).

17. Minor Irregularity in Conducting Enquiry — Any minor irregularity in

the matter of conducting the enquiry cannot vitiate a finding which is so obviously

correct. State of U.P. v. Om Prakash Gupta, 1969 SLR 890: AIR 1970 SC 679: 1969(3)

SCC 775: 1970 Lab IC 568.

18. Hearing of Appeal to the President — Disposal of the appeal by Minister

is a proper and legal disposal of the appeal to the President who has acted on the advice

of the Minister. There is no question of delegation involved in such a matter. Any

reference to the President under any rule made under Constitution must need be to the

President as the Constitutional Head, as envisaged in the Constitution acting with the

aid and advice of the Council of Ministers. Union of India v. Sripati Ranjan, AIR 1975

SC 1755: 1976(1) SCR 268: 1975(4) SCC 699: 1975 Lab IC 1221: 1976(1) SCJ 552:

1975 SLJ 759: 1975(2) SLR 697.

19. Punishing Authority not to Make such Comments which may Influence

Mind of Appellate Authority — It is not competent for the authority which made the

order appealed against to make such comments or remarks on the appeal which might

tend to influence the mind of the appellate authority. Union of India v. B.S. Misra,

1973(2) SLR 430 Raj; Nathaniel Ghosh v. Union Territory of Arunachal Pradesh,

1980(2) SLR 733.

R. 28

28. Implementation of orders in appeal — The authority which

made the order appealed against shall give effect to the orders passed by

the appellate authority.

COMMENTARY

Doctrine of merger— This section is based on doctrine of merger. The

doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily

recognised. It is a common law doctrine founded on principles of propriety in the

hierarchy of justice delivery system.

The logic underlying the doctrine or merger is that there cannot be more than

one decree or operative orders governing the same subject-matter at a given point of

time. When a decree or order passed by inferior court, tribunal or authority was

subjected to a remedy available under the law before a superior forum then, though the

decree or order under challenge continues to be effective and binding, nevertheless its

finality is put in jeopardy. Once the superior court has disposed of the lis before it

either way - Whether the decree or order under appeal is set aside or modified or simply

confirmed, it is the decree or order of the superior court, tribunal or authority which is

the final, binding and operative decree or order wherein merges the decree or order

passed by the court, tribunal or the authority below. Kunhayammed v. State of Kerala,

R. 28] APPEALS 457

AIR 2000 SC 2587: 2000 Supp (1) SCR 538: 2000(6) SCC 359: 2000(3) KLT 354:

2000(119) STC 505: 2000(245) ITR 360: 2000(97) FJR 213: 2001(129) ELT 11.

Though loosely an expression merger of judgment, order or decision of a court

or forum into the judgment, order or decision of a superior forum is often employed, as

a general rule the judgment or order having been dealt with by a superior forum and

having resulted in confirmation, reversal or modification, what merges is the operative

part i.e., the mandate or decree issued by the Court which may have been expressed in

positive or negative form. For example, take a case where the subordinate forum passes

an order and the same, having been dealt with by a superior forum, is confirmed for

reasons different from the one assigned by the subordinate forum what would merge in

the order of the superior forum is the operative part of the order and not the reasoning

of the subordinate forum; otherwise there would be an apparent contradiction. However,

in certain cases, the reasons for decision can also be said to have merged in the order of

the superior court if the superior court has, while formulating its own judgment or

order, either adopted or reiterated the reasoning, or recorded an empress approval of the

reasoning, incorporated in the judgment or order the subordinate forum. The doctrine of

merger is not of universal or unlimited application; the nature of jurisdiction exercised

by the superior forum and the content or subject-matter of challenge laid or which could

have been laid, shall have to be kept in view. S. Shanmugavel Nadar v. State of Tamil

Nadu, AIR 2002 SC 3484: 2002(8) SCC 361: 2002(4) SCJ 386: 2002(2) RCR 404.

Since the above doctrine of merger is not of universal application, the present

Rule 28 has been incorporated to ensure the application of this doctrine expressly.

Accordingly after the decision of superior authority, it is the duty of subordinate

authority to implement the decision.


PART VIII

REVISION AND REVIEW R. 29

29. Revision — (1) Notwithstanding anything contained in these

rules —

(i) the President, or

(ii) the Comptroller and Auditor-General, in the case of a

Government servant serving in the Indian Audit and Accounts

Department, or

(iii) the Member (Personnel) Postal Services Board in the case of

a Government servant serving in or under the Postal Services Board and 1[Adviser (Human Resource Development), Department of

Telecommunications] in the case of a Government servant serving in or

under the Telecommunications Board, or

(iv) the Head of a Department directly under the Central

Government, in the case of a Government servant serving in a

department or office (not being the Secretariat or the Posts and

Telegraphs Board), under the control of such Head of a Department, or

(v) the appellate authority, within six months of the date of the

order proposed to be revised, or

(vi) any other authority specified in this behalf by the President

by a general or special order, and within such time as may be prescribed

in such general or special order,

may at any time, either on his or its own motion or otherwise call

for the records of any inquiry and revise any order made under these

rules or under the rules repealed by Rule 34 from which an appeal is

allowed, but from which no appeal has been preferred or from which no

appeal is allowed, after consultation with the Commission where such

consultation is necessary, and may —

(a) confirm, modify or set aside the order; or

(b) confirm, reduce, enhance or set aside the penalty imposed

by the order, or impose any penalty where no penalty has

been imposed; or

1 Inserted by Notification No. 110/12/13/89-Estt.(A), dated 30-03-1990.

R. 29] REVISION AND REVIEW 459

(c) remit the case to the authority which made the order or to

any other authority directing such authority to make such

further enquiry as it may consider proper in the

circumstances of the case; or

(d) pass such other orders as it may deem fit:

1[Provided that no order imposing or enhancing any penalty shall

be made by any revising authority unless the Government servant

concerned has been given a reasonable opportunity of making a

representation against the penalty proposed and where it is proposed to

impose any of the penalties specified in clauses (v) to (ix) of Rule 11 or

to enhance the penalty imposed by the order sought to be revised to any

of the penalties specified in those clauses, and if an inquiry under Rule

14 has not already been held in the case no such penalty shall be

imposed except after an inquiry in the manner laid down in Rule 14

subject to the provisions of Rule 19, and except after consultation with

the Commission where such consultation is necessary:]

Provided further that no power of revision shall be exercised by

the Comptroller and Auditor-General, Member (Personnel), Postal

Services Board, 2[Adviser (Human Resources Development),

Department of Telecommunications] or the Head of Department, as the

case may be, unless —

(i) the authority which made the order in appeal, or

(ii) the authority to which an appeal would lie, where no

appeal has been preferred, is subordinate to him.

(2) No proceeding for revision shall be commenced until after —

(i) the expiry of the period of limitation for an appeal, or

(ii) the disposal of the appeal, where any such appeal has been

preferred.

(3) An application for revision shall be dealt with in the same

manner as if it were an appeal under these rules.

1 Substituted by Notification No. 11012/15/84-Estt.(A) dated 05-07-1985. 2 Inserted by Notification No. 11012/13/89-Estt. (A), dated 30-03-1990.


COMMENTARY

S Y N O P S I S

1. Scope of rule .................................................................................................................. 460

2. Object and reasons of amendment of Rule 29 and insertion of Rule 29-A ..................... 461

3. Period of limitation for appellate authority to initiate revision proceedings ................... 461

4. Variation or modification of order ................................................................................. 462

5. Revising authority to give reasons for his findings ........................................................ 463

6. Promotion after penalty: Penalty cannot be enhanced under sub-rule (1) .. .................. 463

1. Scope of Rule – Rule 29 gives power to call for the records of any enquiry

and to revise any order. It also authorizes the authorities mentioned therein to remit the

case to the authority which made the order. Such a power is the power of revising the

orders passed by subordinate authorities. The authorities mentioned in the rule may

confirm, reduce, enhance or set aside penalty imposed by the order. Proviso to the rule,

however, impose the limitation on the (revising) authority that unless the Government

servant concerned has been given reasonable opportunity of making a representation

against the penalties proposed or where it is proposed to impose any of the penalties

specified in clauses (v) to (ix) of Rule 11 (Major penalties), or to enhance the penalty

imposed by the order sought to be (revised) to any of the penalties specified in those

clauses, no such penalty shall be imposed except after an inquiry in the matter laid

down in Rule 14 except after consultation with the Commission where such

consultation is necessary. When the authority proposes to impose a major penalty,

procedure of enquiry laid down by Rule 14 has to be followed but where the enquiry

was held according to the provisions of Rule 14 and the authority proposes to enhance

the punishment to a major penalty, it is not the requirement that again fresh enquiry

from the beginning under Rule 14 should be held. Where originally the enquiry was

held for imposing minor penalty and procedure laid down in Rule 14 for imposing

major penalty could not indeed was followed in such a case if the (revising)authority

proposes to impose one of the major penalties, then the proviso requires that no such

penalty shall be imposed except after an enquiry in the manner laid down in Rule 14. If

a proper enquiry under Rule 14 was conducted by the disciplinary authority, a fresh

enquiry is not necessary in revision proceedings under Rule 29. See B.L. Kohli v. Union

of India, 1974 (2) SLR 679; T.L. Anantharaman v. Union of India, 1979 (1) SLR 196;

Krishan Gopal Sharma v. Union of India, 1979 (2) SLR 839: 1981 (1) SLR 775;

Balkishan Soral v. Union of India, 1994 (8) SLR 481 (CAT Jodhpur).

President”s power of review/revision is absolute and the Tribunal cannot

interfere with it unless the exercise of the power is patently arbitrary or suffers from the

vice of mala fide. Rule 29 (1) (i) and Rule 29A, CCS (CCA) Rules empower the

President to enhance the punishment. G.L.Gandhi v. Union of India, 1990 (2) ATJ 176

(Principal Bench).

R. 29] REVISION AND REVIEW 461

Powers of Revising Authority under Rule 29 are very wide. It can direct

disciplinary authority to proceed under Rule 16, CCS Rules. R.K.Gupta v. Union of

India, 1990 (14) ATC 628 (New Delhi).

2. Object and Reasons of Amendment of Rule 29 and insertion of Rule 29-A – In R.K. Gupta v. Union of India, 1981 (1) SLR 752 and to other writ petitions. –

C.W. 196/78 and C.W 322/79 question arose before a Division Bench of Delhi High

Court, does Rule 29 of CCS (CC&A) Rules 1965 (as it stood before its amendment)

gives power to the President to review his own order which he had passed earlier. The

Court held that Rule 29 does not permit the President and other authorities to review

their earlier order. It was further held that the power of review under Rule 29 is really

in the nature of a revision power to revise by an authority higher than the authority

whose order is sought to be reviewed. It does not cover the case of authority reviewing

its own earlier order. Accordingly Rule 29 has been amended and it has been made

clear that Rule 29 confers the power of revision on the President and other authorities

mentioned in the Rule and Rule 29A has been inserted empowering the President only

to review any order passed earlier under these Rules, including an order passed in

revision under the amended Rule 29, when any new material or evidence which could

not be produced or was not available at the time of passing the order under review and

which has the effect of changing the nature of the case, has come, or has been brought,

to his notice.

3. Period of Limitation for Appellate Authority to Initiate Revision Proceedings – What all the appellate authority is empowered to do is to (revise) any

order passed by the subordinate authority and that the appellate authority must,

however, initiate the proceedings, within six months of the date of the order proposed

by him to be revised and that it is not necessary under the rule to pass the final order of

(revision) within six months of the date of order proposed to be (revised). Mere act of

calling for records without anything more can certainly not be equated with initiation of

a proceeding for (revision). It is only when the authority decides upon proceeding

further and issues a notice to the delinquent officer calling upon him to show cause why

the punishment meted out to him should not be enhanced that proceedings for (revision)

can reasonably be said to have been commenced. Such a notice issued after expiry of

six months from the date of order after the period of limitation cannot be issued. See

Shoukata Khan v. Director of Postal Services, 1972 SLR 875.

In K.G. Mohanan v. General Manager, Telecommunications, (1991) 15 ATC

920 (FB), the Central Administrative Tribunal at Ernakulam has held that under Rule 29

(1)(v) of the Central Civil Services (Classification, Control and Appeal Rules, 1965),

the time limit of 6 months is not applicable for the exercise of revisional power by the

appellate court. The time limit applies for calling for the records of the disciplinary

authority of the appellate authority, while the power of the Courts to dispose of the case

in revision can be exercised within reasonable time.

Entire process of revising etc., the order of the disciplinary authority must be

completed within 6 months if the sentence is to be enhanced, i.e. (i) serving the

Government servant with show cause notice against enhancement, (ii) [considering his

representation, if any], (iii) passing the order of major penalty against him if


representation did not find favour. Naresh Kumar v. H.P. State Civil Supplies

Corporation, (1989) 7 SLR 82 (HPAT, Simla).

When appellate authority happens to be departmental head, it is not competent

to exercise power of review. Rule 15 (A) of Police and Subordinate Services (Discipline

and Appeal) Rules, corresponding to Rule 29(1), second proviso, CCS Rules was so

construed in P.Sabesan v. State of T.N., (1986) 1 SLR 69. Kailash Chandra Dip v.

Union of India, 1990 (14) ATC 446 (Cuttack).

When revising Authority sets aside order of disciplinary authority dropping

proceedings without inquiry, no opportunity to show cause is required. Rule 29, CCS

(CCA) Rules does not envisage such notice, unless penalty is proposed to be enhanced.

M.M. Bhandari v. Union of India, (1990) 14 ATC 642 (Jodh).

Appellate authority under rule 29(1)(V) CCS (CCA) Rules, 1965 must

complete the process within 6 months from the date of the order sought to be revised.

The time limit relates to completion of the action enquiry and not the mere initiation of

the action. H.N. Divakaran v. Collector of Customs, (1991) 2 SLR 534, 538, para 10

(CAT).

Time limit of 6 months on rule 29(1)(v) governs the completion of the action

by appellate authority Toney v. Director of Telegraphs, Kerala, (1976) KLT 172;

Nandresh Kumar v. H.P. State Civil Supplies Corporation, (1989) 7 SLR 82.

Power of appellate authority to enhance punishment imposed by the

disciplinary authority to be exercised within 6 months. Entire process must be

completed within 6 months. It is not enough that notice to show cause against

enhancement was issued within 6 months. P. Rajaram v. Director of Postal Services,

(1989) 1 SLR 445 (CAT Hyd).

Under rule 29(1)(v) of CCS (CC&A) Rules, the appellate authority can revise

the order within six months of the date of the order proposed to be revised. Dilbagh

Singh v. Union of India, (1990) 3 SLR 760, 761, 768 (CAT Chand).

4. Variation or Modification of Order – Enhancement of punishment,

variation or modification in previous order is to be made after giving opportunity to the

Government servant. G.S. George v. Government of A.P., AIR 1968 AP 153; L. Samjai

Singh v. Deputy Commissioner of Manipur, AIR 1968 Manipur 16.

A person to whom a notice is issued to show cause why the penalty already

imposed on him should not be enhanced is entitled to urge that the findings are wrong

and that no punishment or enhanced punishment is called for. M. Venugopala Chetty v.

Union of India, 1971 (1) SLR 853 (AP).

Under rule 29(d) of CRPF Rules, 1955, the power of revision has been

conferred and such power can be exercised only if there is some punishment imposed

upon the employee. It has no application if no punishment has been imposed. Mahinder

Singh v. Union of India, 2000(2) SLR 345 P&H.

R. 29A] REVISION AND REVIEW 463

5. Revising Authority to Give Reasons for his Findings – The revising

authority should pass a speaking order giving reasons in support of his conclusion.

Kripal Singh v. State of Rajasthan, 1980 (2) SLR 717 (Raj.).

6. Promotion After Penalty : Penalty cannot be Enhanced under Sub-rule (1) –Held, that the authorities after imposing a penalty and thereafter promoting him,

cannot again ask the petitioner to show cause why the punishment which had already

been imposed, should not be enhanced. It must be assumed that the authorities had

condoned the misconduct against him for which he had been punished and his slate had

been wiped clean. Mohammad Habibul Haque v. Union of India, 1978 (1) SLR 637.

REVIEW R. 29A

29A. Review – The President may, at any time, either on his own

motion or otherwise, review any order passed under these rules, when

any new material or evidence which could not be produced or was not

available at the time of passing the order under review and which has the

effect of changing the nature of the case, has come or has been brought,

to his notice:

Provided that no order imposing or enhancing any penalty shall be

made by the President unless the Government servant concerned has

been given a reasonable opportunity of making a representation against

the penalty proposed or where it is proposed to impose any of the major

penalties specified in Rule 11 or to enhance the minor penalty imposed

by the order sought to be reviewed to any of the major penalties and if

an inquiry under Rule 14 has not already been held in the case, no such

penalty shall be imposed except after inquiring in the manner laid down

in Rule 14, subject to the provisions of Rule 19, and except after

consultation with the Commission where such consultation is necessary.

COMMENTARY

S Y N O P S I S

1. Review without power... ................................................................................................ 464

2. Review of order of compulsory retirement ..................................................................... 464

3. Correction of mistake ..................................................................................................... 464

464 GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS [R. 29A

1. Review without power — An order reviewing the punishment and

enhancing it, without any such power to this effect prescribed in the Rules, is illegal. K.

Maruthi v. Karnataka Power Corporation Ltd., 1999 (5) SLR 125 Kar.

2. Review of order of compulsory retirement — Merely because there is no

provision in F.R. 56 for review, an order of Government, cancelling an order of

compulsory retirement and recalling the retired employee can not be denounced as

unsustainable in law. Bishnu Boishya v. State of Assam, 2000 (3) SLR 461 Gau.

3. Correction of mistake — is not review of the order. Birendra Nath Mondal

v. Vidyasagar University, 1999 (4) SLR 525 Cal.

For object and reasons of insertion of this Rule see Synopsis 2 under

Commentary on Rule 29.

R. 30] MISCELLANEOUS 465

PART IX

MISCELLANEOUS R. 30

30. Service of orders, notices, etc — Every order, notice and

other process made or issued under these rules shall be served in person

on the Government servant concerned or communicated to him by

registered post.

COMMENTARY

While according to this rule the communication of an order is mandatory, in

one case it was claimed that the order of discharge was communicated after a delay of 4

years and therefore the appeal was only thereafter. It was held that since the employee

was neither getting any salary nor was given any duty, and he took no steps to redress,

he was guilty of laches. Gurjinder Singh v. State of Punjab, 1999 (7) SLR 641 P&H

(DB). Though that case arose under Punjab Police Rules, it is to be seen if this rule can

be relied by a person to explain the delay.

31. Power to relax time-limit and to condone delay — Save as

otherwise expressly provided in these rules, the authority competent

under these rules to make any order may, for good and sufficient reasons

or if sufficient cause is shown, extend the time specified in these rules

for anything required to be done under these rules or condone any delay.

32. Supply of copy of Commission”s advice — Whenever the

Commission is consulted as provided in these rules, a copy of the advice

by the Commission and, where such advice has not accepted, also a brief

statement of the reasons for such non-acceptance, shall be furnished to

the Government servant concerned along with a copy of the order passed

in the case, by the authority making the order.

33. Transitory Provisions — On and from the commencement of

these rules and until the publication of the Schedules under these rules,

the Schedules to the Central Civil Services (Classification, Control and

Appeal) Rules, 1957, and the Civilians in Defence Services

(Classification, Control and Appeal) Rules, 1952, as amended from time

to time, shall be deemed to be the Schedules relating to the respective

categories of Government servants to whom they are, immediately

before the commencement of these rules, applicable and such Schedules


shall be deemed to be Schedules referred to in the corresponding rules of

these rules.

R. 34

34. Repeal and Saving — (1) Subject to the provisions of Rule

33, the Central Civil Services (Classification, Control and Appeal)

Rules, 1957, and the Civilians in Defence Services (Classification,

Control and Appeal) Rules, 1952, and any notifications or orders issued

thereunder in so far as they are inconsistent with these rules, are hereby

repealed;

Provided that —

(a) such repeal shall not affect the previous operation of the said

rules, or any notification or order made, or anything done, or any action

taken, thereunder;

(b) any proceedings under the said rules, pending at the

commencement of these rules shall be continued and disposed of, as far

as may be, in accordance with the provisions of these rules, as if such

proceedings were proceedings under these rules.

(2) Nothing in these rules shall be construed as depriving any

person to whom these rules apply, of any right of appeal which had

accrued to him under the rules, notification or orders in force before the

commencement of these rules.

(3) An appeal pending at the commencement of these rules against

an order made before such commencement shall be considered and

orders thereon be made, in accordance with these rules, as if such orders

were made and the appeals were preferred under these rules.

(4) As from the commencement of these rules any appeal or

application for review against any orders made before such

commencement shall be preferred or made under these rules, as if such

orders were made under these rules;

Provided that nothing in these rules shall be construed as reducing

any period of limitation for any appeal or review provided by any rule in

force before the commencement of these rules.

COMMENTARY

S Y N O P S I S

R. 35] MISCELLANEOUS 467

1. Central Civil Services (Classification, Control and Appeal) Rules, 1957 ...................... 467

2. Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952 .......... 467

3. Effect of sub-rule(1) ....................................................................................................... 467

4. Pending proceedings ...................................................................................................... 467

1. Central Civil Services (Classification, Control and Appeal) Rules, 1957 — These rules have been repealed by Rule 34. H.L. Mehra v. Union of India, AIR 1974

SC 1281: 1975(1) SCR 138: 1974(4) SCC 396: 1974 SLJ 379: 1974(2) SLR 187: 1974

Lab IC 984.

2. Civilians in Defence Services (Classification, Control and Appeal) Rules,

1952 — These rules have been repealed by Rule 34. Kishan Ram v. Union of India,

1974 SLJ 18.

3. Effect of Sub-rule (1) — Rule 34 (1) makes the new rules applicable to all

those persons who were appointed prior to the coming into force of the new rules and to

whom the old rules apply. The rights to the extent saved are detailed in the proviso. It is

not necessary when the rules are repealed and replaced by another set of rules that there

should be a specific mention that by virtue of new rules, all the previous rules are

thereby repealed. There is nothing to suggest that Rule 34 saves old Rule 55-B by mere

reason of absence of reference to Rule 55-B in the new rules. Purshottam S. Irani v.

H.M. Singh, 1977(1) SLR 636.

4. Pending Proceedings — Rule 34 which repeals the Rules of 1957 provides

in proviso (b) for the application of these Rules of 1965 to pending proceedings. H.L.

Mehra v. Union of India, AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396:

1974 SLJ 379: 1974(2) SLR 187: 1974 Lab IC 984.

R. 35

35. Removal of doubts — If any doubt arises as to the

interpretation of any of the provisions of these rules, the matter shall be

referred to the President or such other authority as may be specified by

the President by general or special order, and the President or such other

authority shall decide the same.

____

Date post:	10-Apr-2015
Category:	Documents
Upload:	gn2040
View:	4,178 times
Download:	5 times