Case BriefsSupreme Court

Supreme Court: Explaining the scope misconduct by employees, the bench of RK Agrawal and AM Sapre, JJ said that there is no defense available to a delinquent to say that there was no loss or profit resulting in a case when officer/employee is found to have acted without authority.

The Court was hearing the case where the appellant, an assistant with LIC, was suspended for his alleged misconduct as he had, in discharge of his duties, issued as many as seven receipts including special premium receipts to the policyholders without receiving any premium amount from them. The appellant, in substance, admitted the issuance of receipts by him and also admitted non-receipt of the amount against any of these receipts from any of the policyholders. He, however, contended that such mistake occurred on his part due to heavy pressure of workload on him and some family circumstances/worries that were troubling him during those days.

Rejecting the contention of the appellant, the Court said that an employee, in discharge of his duties, is required to exercise higher standard of honesty and integrity. In a case where he deals with the money of the depositors and customers, it is all the more necessary for him to be more cautious in his duties because he deals with the money transactions for and on behalf of his employer.

It was further held that every such employee/officer is, therefore, required to take all possible steps to protect the interest of his employer. He must, therefore, discharge his duties with utmost sense of integrity, honesty, devotion and diligence and must ensure that he does nothing, which is unbecoming of an employee/officer. Any dereliction in discharge of duties whether by way of negligence or with deliberate intention or with casualness constitutes misconduct on the part of such employee/officer. [Mihir Kumar Hazara v. Life Insurance Corporation, 2017 SCC OnLine SC 1068, decided on 11.09.2017]

 

Case BriefsSupreme Court

Supreme Court: Considering the pressing need of filling up the huge vacancy in police force, the bench of J.S.Khehar, CJ and Dr. D. Y. Chandrachud, JJ approved the selection process suggested by the States of Uttar Pradesh, Karnataka and Tamil Nadu and asked the States to duly comply with the timelines suggested by them for achieving the aforementioned goal.

The State of Uttar Pradesh said that 3200 Sub-Inspector of Police and 30000 Constables, will be recruited each year over four years commencing from the year 2018

The State of Karnataka had provided a detailed plan for filling up the vacancies in the State in the form of the ‘Road Map for filling up the vacancies during the year 2016-17’ and committed to recruit 942 sub-inspectors and 12139 constables by the end of 2019.

The State of Tamil Nadu said that it would fill up the 77 vacancies in the cadre of sub-inspector within 5 months and the 17,589 vacancies for the post of Constable will be filled up by April, 2018.

Regarding the States of West Bengal, Bihar and Jharkhand, who had been issued notice earlier to come up with an action plan, the Court deferred the proceedings to 01.05.2017. The Court also asked the Home Secretaries of the States of Gujarat, Telangana and Rajasthan to to prepare a definite road map for filling up the vacancies of police personnel. [Manish Kumar v. Union of India, WRIT PETITION(C) NO.183/2013, order dated 24.04.2017]

Case BriefsSupreme Court

Supreme Court: Stating that the Court would fail in it’s duty if it did not took note of the grievance of the BSF, CRPF, CISF, ITBP, RPF and SSB who are grieved by non-grant of equal pay for equal work, that is, benefit that has been granted to the organized services, the bench of Dipak Misra and M.M. Shantagoudar, JJ asked the respondents to file their duty chart in respect of each of the forces. The Court also asked the Union of India to file the duty chart and the job allocation so that a comparison can be made that can render assistance in the process of adjudication.

The Court was hearing the appeal filed against the order of the Delhi High Court creating Organized Group ‘A’ Services on the basis of certain notes, correspondences and the letters issued by the Department of Personnel and Training (DoPT), Government of India, for it is the Home Department which has the jurisdiction/authority under the Railway Protection Force Act, 1957, Border Security Force Act, 1968, Central Industrial Security Force Act, 1968, Central Reserve Police Force Act, 1949, Sashastra Seema Bal Act, 2007 and Indo Tibetan Border Police Force Act 1992. The respondents, referring to an Office Memorandum which gives list of Central Group ‘A’ Services category wise, had contended that once an office memorandum has been issued accepting the position, it cannot be stated that it is based on office notes or a policy decision

The Court, agreeing to hear the matter, framed the following issues for consideration:

  • Whether by virtue of issuing the office memorandum by the DoPT classifying the categories with regard to Centralized Group ‘A’ Services, as a natural corollary, the respondents can have the similar benefits with the Organized Group ‘A’ Services, for Group ‘A’ Organized Services has drawn from the Central Group ‘A’ Services and their attributes thereof are provided for in the O.M. dated 20th November 2009?
  • Whether the Home Department alone responsible to take the decision or other departments can confer the benefit of equivalence subject to approval by the Cabinet?
  • Whether the nature of work of the persons who are engaged in this service would be a factor to extend the benefit by the Union of India on the principle of parity?

In addition to framing the above issues, the Court said that if the conferment of monetary benefit can assuage the grievance of the respondents, the Union of India may rethink over the matter without disturbing its sense of discipline as it conceives. The Court gave 12 weeks’ time to the Union of India to deliberate upon the matter so as to take a sound decision and listed the matter on 09.08.2017. [Union of India v. Shri Harananda, 2017 SCC OnLine SC 391, order dated 06.04.2017]

Case BriefsSupreme Court

Supreme Court: Stating that ‘transfer’ and ‘recruitment by transfer’ are entirely two different concepts, the Court said that no doubt transfer can be from one category to another category or within the class if the rule permits interchangeability of the categories within a class but any other transfer both intra category and inter category are in fact, under law is a selection and appointment by way of a transfer from one category to another or from one class to another class or from one service to another.

Explaining further, the Court said that transfer in relation to service simply means a change of a place of employment within an organization. Such transfer being to a similar post in the same cadre and therefore, obviously such a transfer does not result in the termination of his lien in the parent cadre but recruitment by transfer is a different service concept altogether. Once an employee undergoes a transfer by way of a recruitment to a different cadre or to a different service, the employee loses his lien in the parent cadre/service. In that process, there is an induction to a new cadre and sometimes with a different type of duty. Such induction has distinct consequence on the career of the employee different from what would have been the normal course had he continued in the parent service.

The bench of Kurian Joseph and R. Banumathi, JJ also explained the difference between ‘Seniority’ and ‘eligibility’ and said that as far as promotion or recruitment by transfer to a higher category or different service is concerned if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being superseded. Other things being equal, senior automatically gets promoted. But in the case of selection based on merit-cum-seniority, it is a settled principle that seniority has to give way to merit. Only if merit being equal senior will get the promotion. It was held that merely because a person is senior, if the senior is not otherwise eligible for consideration as per the rules for promotion, the senior will have to give way to the eligible juniors. [Palure Bhaskar Rao v. P. Ramaseshaiah, 2017 SCC OnLine SC 388, decided on 12.04.2017]

Case BriefsSupreme Court

Supreme Court: In the case where the respondents who were initially engaged on casual basis and after one or two years were granted the temporary status and thereafter were regularized, had sought for full service benefit for the period during which they were working, having temporary status, the Court held that the casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularised   on   a   regular/temporary   post   for   the purposes of calculation of pension. It was further added that the casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purpose of pension.

The respondents in the present case were working in the Railways and hence, the Court said that those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of the Railway Services (Pension) Rules, 1993. The Court held that the Delhi High Court erred in holding that the worker is entitled to reckon 100% of his services for the purpose of calculation of pension and noticed that the perusal of Rules indicate that only half of the period of service of a casual labour after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as a regular Railway employee, counts for pensionary benefits.

The Bench of Dr. A.K. Sikri and Ashok Bhushan, JJ further clarified that it   is   open   to   Pension   Sanctioning   Authority   to recommend   for   relaxation   in   deserving   case   to   the Railway   Board   for   dispensing   with   or   relaxing requirement   of   any   rule   with   regard   to   those   casual workers who have been subsequently absorbed against the post   and   do   not   fulfill   the   requirement   of   existing rule   for   grant   of   pension,   in   deserving   cases.   On   a request   made in writing,   the   Pension   Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of  Rules, 1993. [Union of India v. Rakesh Kumar, 2017 SCC OnLine SC 274, decided on 24.03.2017]

Case BriefsSupreme Court

Supreme Court: Answering the question as to whether the Annual Confidential Report (ACR) of an officer could be ignored for the purposes of his promotion merely on the ground that it was written after some delay, in negative, the Court said that the ACR of an officer forms a part of his service record and he cannot be prejudiced merely because his superior officers delayed writing it.

In the present case, A Select Committee constituted under the Indian Police Service (Appointment by Promotion) Regulations, 1955 considered the appellant, amongst others, for promotion in the Indian Police Service.  Referring to the decision of the Court in G. Mohanasundaram v. R. Nanthagopal, (2014) 13 SCC 172, where it was held that in terms of the IAS Regulations, the UPSC is obliged to consider the service record, which includes ACR, of a candidate who is eligible for promotion and it is on the basis of the overall relative assessment of the service record that an eligible officer may be graded, the Court said that in the said case the provisions of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 were under consideration and that the relevant provisions are in pari materia with the provisions of the Indian Police Service (Appointment by Promotion) Regulations, 1955.

The bench of Madan B. Lokur and P.C. Pant, JJ said that the writing and review of the ACR is beyond the officer’s control and hence, there is no rational basis on which the officer could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities. [P. Sivanandi v. Rajeev Kumar, 2017 SCC OnLine SC 85, decided on 02.02.2017]

Case BriefsSupreme Court

Supreme Court: In the petition filed by the Physically Handicapped candidates belonging to Other Backward Classes (OBC), claiming that they are entitled to avail 10 attempts instead of 7 attempts in the Civil Services Examination, the bench of Ranjan Gogoi and Ashok Bhushan, JJ held that the reservation provided to the Physically Handicapped Candidates of General and OBC category is a horizontal reservation. Both being provided 7 attempts to appear in Civil Services Examination, no discrimination or arbitrariness can be found as the Physically Handicapped Category is a Category in itself, a person who is physically handicapped be it Physically Handicapped of a General Category or OBC Category, suffering from similar disability has to be treated alike in extending the relaxation and concessions.

The said challenge was made on the ground that since the attempts for Physically Handicapped candidates belonging to General Category have been increased from 4 to 7, w.e.f. 2007 Civil Services Examination by Notification dated 29.12.2007, there should be a proportionate increase in attempts to be taken by Physically Handicapped Candidates belonging to the OBC Category.

Rejecting the said contention, the Court held that when the attempts of Physically Handicapped candidates of OBC Category and Physically Handicapped candidates of General Category, who appeared in the Civil Services Examination are made equal, and a Physically Handicapped candidate belonging to OBC Category, in addition to 10 years relaxation in age also enjoys 3 years more age relaxation for appearing in the examination, it cannot be said that there is discrimination between Physically Handicapped candidates of OBC Category and Physically Handicapped Candidates of General Category. The reserved category candidate belonging to OBC are separately entitled for the benefit which flow from vertical reservation, and the horizontal reservation being different from vertical reservation, no discrimination can be found when Physically Handicapped candidates of both the above categories get equal chances i.e. 7 to appear in the examination.

The Court also said that the horizontal reservation and relaxation for Physically Handicapped Category candidates for Civil Services Examination is a matter of Governmental policy and it is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether better policy could be evolved. The Court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Article 14 of the Constitution. [Union of India v. M. Selvakumar, 2017 SCC OnLine SC 58, decided on 24.01.2017]

Case BriefsHigh Courts

Calcutta High Court: In the matter where 71 petitioners had filed a writ application challenging the fixation of the cut-off date of the Contributory Provident Fund Scheme on publication of the West Bengal Comprehensive Area Development Corporation Employee’s [Death cum Retirement] Benefit Regulations 2008, I.P. Mukerji, J struck down the part of regulations fixing a cut-off date and held that the petitioners will be entitled to the benefits of the impugned Regulations. However, they will have to return the entire amount of the employer’s share towards Contributory Provident Fund with interest

The Regulation which was merely an Administrative Instruction, was published on 10th December, 2008 and was made applicable with retrospective effect from 1st April, 2008 and and the benefit was extended to all whole time employees, permanent and temporary who were in the service of the Corporation on 1st April, 2008 and also to those who were appointed on and after that date. The employees, by these Regulations became entitled to pension after ten years of qualifying service.

The court observed that, “After termination of their service, the retired employees cannot sit as watchdogs on the periphery of the organization and expect that this benefit will also be extended to them in full measure”. However, the Court took note of the ratio of D.S. Nakara v. Union of India, (1983) 1 SCC 305 where it was observed that the court is entitled to read down an offending piece of legislation to make it compatible with the Constitution. Applying the above-mentioned ratio to the case at hand, the Court said that the impugned regulations treat the members of the same class differently as they make a discrimination between members of the same class i.e. retired employees. It confers benefits on those who retired between 1st April, 2008 and 10th December 2008 and leave out the rest. Hence, reading down the Regulations, the Court held that the benefits of these regulations have to be extended to the remaining petitioning retired employees also. [Rabindra Nath Munsi v. State of West Bengal, 2016 SCC OnLine Cal 2302 decided on 15.06.2016]

Case BriefsHigh Courts

Allahabad High Court: Deciding a petition where a woman police constable was dismissed from service and deprived of all consequential benefits for marrying her co-constable, who was already married and for solemnising the marriage without seeking the prior permission of the department, the Bench of Mahesh Chandra Tripathi, J. held that the punishment of dismissal from service is too harsh and disproportionate to the conduct of the petitioner and the directed the respondents to reinstate her in service forthwith with all consequential benefits.

The husband was merely awarded censure entry, whereas the petitioner was found guilty by way of a departmental enquiry under Rule 29(2) of the U.P. Government Servant Conduct Rules, 1956 and awarded a harsh punishment of dismissal from service. The petitioner contended that she had no knowledge about the first marriage of  her husband and that he had a living wife and hence, had not committed any misconduct. The petitioner cited the case of Shravan Kumar Panday v. State of UP, (2010) 8 ADJ 243 wherein it was held that whoever violates the provisions of Rules 29(1) and (2) shall be awarded with minor penalty and awarding a punishment of dismissal is a major punishment which is against the spirit of Rule 29.

The respondent vehemently opposed the petition on the ground that as per the provisions of Rule 29 of the 1956 Rules, second marriage is impermissible and once it has been accepted by the petitioner, that her husband was already married and he has living wife and four children, no leniency is required in the matter.

The Court agreed with the petitioner’s contention that according to Section 17 of the Hindu Marriage Act, no marriage between two Hindus could be solemnised, if one of them has a husband or wife living and if such marriage is solemnised after the commencement of this Act, it would be null and void. The provisions of Sections 494 and 495 of the Penal Code, 1860 shall apply in such cases. Applying this law, the marriage of the petitioner was null and void under law and no punishment could be awarded against her under Rule 29 of the 1956 Rules. As per Section 11 read with Section 5 of the Hindu Marriage Act, 1955, the marriage may be held as void. The petitioner’s case cannot be dealt with under Rule 29 of the 1956 Rules.

The Court held that it will be open to the respondents to award any minor punishment against the petitioner,if they think proper in the facts and circumstances of the case, after affording her full opportunity of hearing. [Aneeta Yadav v. State of  U.P,  2016 SCC OnLine All 294, decided on 2 May 2016]