SUPREME COURT SET ASIDE DISCHARGE ORDER MADE WITHOUT INQUIRY

This is an army case, decided by the Supreme Court of India, but the principle involved is equally applicable in civil cases also.

This is a case where it was found that no enquiry whatsoever was conducted by the Commanding Officer at any stage against the appellant in this case as required under the procedure. More importantly, there was nothing on record to suggest that the authority competent had taken into consideration the long service rendered by the appellant, the difficult living conditions and the hard stations at which he had served.

The material facts were not in dispute. It was not in dispute that the appellant had within a period of 12 years of the service suffered as many as four red ink entries. All these entries were awarded to him on account of overstaying leave for a period ranging between 29 days to 66 days.

There was nothing on record to suggest that the nature of the misconduct leading to the award of red ink entries was so unacceptable that the competent authority had no option but to direct his discharge to prevent indiscipline in the force. Also the ASG, did not dispute the fact that many number of other personnel were still in service no matter they have earned four red ink entries on account of overstaying leave. In such cases, the only safeguard against arbitrary exercise of power by the authority would be to ensure that there is an enquiry howsoever summary and a finding about the defence set-up by the individual besides consideration of the factors made relevant under the procedure.

The SC took notice that it was common ground that a red ink entry might be earned by an individual for overstaying leave for one week or for six months. In either case the entry would a red ink entry and would qualify for consideration in the matter of discharge. If two persons who suffer such entries were treated similarly notwithstanding the gravity of the offence being different, it would be unfair and unjust for unequal could not be treated as equal. More importantly, a person who had suffered four such entries on a graver misconduct may escape discharge which another individual who has earned such entries for relatively lesser offences may be asked to go home prematurely. The unfairness in any such situation makes it necessary to bring in safeguards to prevent miscarriage of justice. That was precisely what the procedural safeguards purported to do in this case.

In the result this appeal against a judgment and order dated 14th December 2011 passed by the Armed Forces Tribunal succeeded and was allowed by the Supreme Court andt he order of discharge passed against the appellant was set aside. Since the appellant has already crossed the age of superannuation, it was directed that the appellant should be treated to have been in service till the time he would have completed the qualifying service for grant of pension but without back wages. Benefit of continuity of service for all other purpose should, however, be granted to the appellant including pension. Monetary benefits payable to the appellant shall be released expeditiously but not later than four months from the dateof this order.

(Ref.:Supreme Court Judgement dated October 16, 2015 in Veerendra Kumar Dubey V/s Chief of Army Staff & Ors.)

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Procedure for booking of air-tickets on LTC- Clarification

DOPT vide OM. No. 31011/5/2014-Estt (A.IV) dated September 23, 2015 directed to refer its earlier O.M. No. 31011/4/2014-Estt.(A-IV) dated 19th June, 2014 which lays down that the Government employees are required to book the air tickets directly from the airlines (Booking counters, website of airlines) or by utilizing the service of Authorized Travel Agents viz. 'M/s Balmer Lawrie & Company', 'M/s Ashok Travels & Tours' and 'IRCTC' (to the extent IRCTC is authorized as per DoPT O.M. No. 31011/6/2002-Est(A) dated 02.12.2009) while undertaking LTC journey(s). Vide DoPT's O.M. 31011/5/2014-Estt.(AIV) dated 24.09.2014, the web-portal of these authorized travel agents will also be treated as an acceptable mode for purchase of air tickets on LTC subject to the conditions stated vide Department of Expenditure's O.M. No. 19024/1/2012-E-IV dated 5thSeptember, 2014.

It further stated that various Ministries/Departments continue to send references to DoPT seeking relaxation regarding the booking of air tickets for the purpose of LTC from the travel agents not authorised by the aforesaid O.M.. In most of the cases, the common reason stated by the LTC beneficiaries is that they were not aware of the guidelines and inadvertently booked the tickets from other travel agents. 

Therefore, they advised to ensure a wide circulation of the guidelines as stated in para 1 of this O.M.. It was also advised that this point may also be emphasized by the Administration whenever any advance is sought or intention to avail LTC is conveyed by the Government servant. 

SC: THE RESPONDENTS CANNOT TAKE THE BENEFIT OF THE DELAY CAUSED BY THEM. (ABSORPTION OF RETRENCHED EMPLOYEES)

In a landmark judgement of the Supreme Court of India dated September 09, 2015 in Civil Appeal no. 9165-72/09, held that the respondents cannot take the benefit of the delay caused by them. Thereby it approved single bench decision of the High Court and reversed Division Bench order.

The admitted facts of the case was that in the State of U.P. a set of rules were existed namely, the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules, 1991. After the Corporation was wound up, the employees of the U.P. State Cement Corporation Limited Corporation, filed Writ Petition seeking absorption under the aforesaid Rules.

The Single Judge hearing the writ petition referred to Rule 3(i) of the Rules that deals with the rights of the retrenched employees. He referred to the dictionary clause engrafted in Rule 2(c), which reads as follows: “2(c) Retrenched employees means a person who was appointed on the post under the Govt. or a public corporation on or before Oct., 1, 1986 in accordance with the procedure laid down for recruitment to the post and was continuously working in any post under the Government or such Corporation up to the date of his retrenchment. Due to reduction in, or winding up of, any establishment of the Government or the Corporation, as the case may be and in respect of whom a certificate of being a retrenched employee has been issued by this appointing authority.”

After reproducing the said provision, the High Court referred to the order passed in Civil Miscellaneous Writ Petition No.17195 of 1998, and reproduced the relevant paragraphs from the decision rendered therein and, thereafter, took note of the fact that the said order had been affirmed in Special Appeal No.540 of 1999, and further stood confirmed by the SC, for the appeal preferred before the Supreme Court did not meet with success. The learned Single Judge also referred to the order passed in Civil Miscellaneous Writ Petition No. 38534 of 2001 on 20th September, 2003, wherein a direction was issued to the respondent No.2 to take appropriate decision. After the said direction was issued, the Principal Secretary (Personnel), Government of U.P., rejected the claims of the petitioners therein on the foundation that the Personnel Department did not have the authority to declare the employees as retrenched employees and to take a decision for their absorption. The learned Single Judge dealt with various contentions raised by the learned counsel for the parties and also cogitated upon the U.P. Absorption of Retrenched Employees of the State Government/Public Sector Corporation in Government Service (Recession) Rules, 2003 and, eventually held that the Absorption Rules, 1991 were rescinded on 8th April, 2003 and much prior to that the employees had represented and the respondents were required to consider their rights for absorption within two months and regard being had to the rule position, it could safely be held that the rights of the employees had crystallized much before the Rules were rescinded. After so holding, the learned Single Judge proceeded to state, “The respondents cannot take the benefit of the delay caused by them in considering petitioners application. The two months period granted by this Court on 20.09.2002 expired on 20.11.2002. The delay made by the Secretary (Karmik) Anubhag-2, Government of U.P. in deciding the matter, cannot be a ground to refuse the due consideration, required to be made by this Court before the rescission of the Rules. The Rescission of Rules will, therefore, not come in the way of petitioners in claiming the absorption. The writ petition, as such, allowed. The impugned order dated 30.04.2003 passed by the Special Secretary (Karmik) Anubhag-3, Govt. of U.P., Lucknow (Annexure-10 to the writ petition) is quashed. The respondents are directed to absorb the petitioners in any vacancy on Group-C post outside the purview of Public Service Commission within a period of two months from the date of production of a certified copy of this order.”

The aforesaid order was assailed before a Special Bench in Special Appeal No.618 of 2004 and the Division Bench of the High Court reversed the Single Bench decision.

However, the Supreme Court disapproved the Division Bench decision and upheld the decision of Single Bench with the following words indicating what is happening in the Courts in India: “In the obtaining factual matrix, we are disposed to think that it was absolutely inappropriate on the part of the High Court to go in search of ratio of the judgment rendered by the Single Judge on the earlier occasion, when the controversy had really been put to rest by this court. The Division Bench, we are disposed to think, should not have entered the arena which was absolutely unwarranted. The decision rendered by this Court inter se parties was required to be followed in the same fact situation. When the factual matrix was absolutely luminescent and did not require any kind of surgical dissection, there was no necessity to take a different view. Needless to say, this kind of situation procrastinate the litigations and the litigants,… is extremely expensive and time consuming.”

In this regard, SC had quoted from an earlier decision, “One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority.”

Finally, it was held that in view of the aforesaid analysis, they could not find any reason why the appellants therein should not reap the benefits of absorption and, accordingly, it was directed that they should be absorbed by the State Government as per their seniority and be given the benefit of increments, within eight weeks. SC also ordered that they would be entitled to their seniority as per the prevalent rules. If anyone hds been retired from service, he should also get the retirement benefits inclusive of pension.

[Reference: SC., CIVIL APPEAL NOS.9165-9172 OF 2009 Sunil Kumar Verma and Others Appellant(s) V/s State of U.P. and Others Respondent(s)]

Supreme Court: Higher qualification automatically would not entitle to the pay-scale of higher post than the post to which one is appointed.

In a case decided by the Supreme Court on September 01, 2015, it was held that  Higher qualification automatically would not entitle to the pay-scale of higher post than the post to which one is appointed.

The appellants in this case had been working for the last 25 years in the respondent Institutions and teaching the students of the college. The reason given by the High Court is that for the purpose of claiming pay-scale at par with the college teachers, the minimum requirement was that one had to clear the State Level Eligibility Test. In Supreme Court's view, that condition would not apply so far the appellants were concerned as because on the date when they were appointed and transferred to the college there was no requirement for having the qualification of State Level Eligibility Test. The qualification of the candidate was considered at the time of appointment and not after rendering 25 years of service in the college.

 The submission of the State counsel wass that the appellant was only Acharya and, therefore, he could only get the benefit of merger. However, the SC did not accept the submission made by the learned counsel. Further, it was also held that the High Court was not correct in holding that merely because the appellants have higher qualifications would not mean that they automatically become entitled to the pay-scale of higher post than the post to which they were appointed. The ratio decided in the case of State of Haryana vs. Kamal Shahrawat will not apply in the facts of the present case for the simple reason that the appellants have been serving in the college as a lecturer for the last 25 years

After  considering the matter, SC was of the view that in the special facts and circumstances of the present case, the appellants were entitled to get the pay-scale at par with the teachers of the respondent college inasmuch as they had been discharging the same duties and  also possessing the required qualification. However, the SC has made it clear this order would not create a precedent.

[Reference: Gurdas Singh and others etc. v/s State of Punjab and others (SC ) CIVIL APPEAL Nos.6691-6692 OF 2015 Decided on 01/09/2015 ]

IN THE ABSENCE OF ANY PROVISION FOR CONSEQUENTIAL SENIORITY IN THE RULES, THE ‘CATCH UP RULE’ WOULD BE APPLICABLE

It is held by the Supreme Court that in the absence of any provision for consequential seniority in the rules, the ‘catch up rule’ would be applicable and the roster-point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reached the promotional level, general candidates would regain their seniority. By reversing the decision of the Division Bench of the Madras High Court, Supreme Court held that the Division Bench appeared to have proceeded on an erroneous footing that Article 16 (4A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster-point promotees and hence the judgment of the Division Bench could not be sustained.

As a result, the judgment of the Madras High Court was set aside by the SC and the appeals were allowed. State Government-respondent Nos. 1 and 2 were directed to revise the seniority list of Assistant Divisional Engineers applying the ‘catch up rule’ within four months. It was ordered that pursuant to the judgment ofthe Division Bench of Madras High Court, if any further promotion had been granted to the Assistant Divisional Engineers promoted from the rank of Junior Engineers following rule of reservation with consequential seniority, the same should be reversed. Further promotion of Assistant Divisional Engineers should be as per the revised seniority list.

(Reference: CIVIL APPEAL NOS. 6631-6632 of 2015 GOVERNMENT OF TAMIL NADU

AND ANR. ETC.ETC. V/s. V. VIVEKANANDAN & ORS. ETC.decided on August 27, 2015)

SUPREME COURT: DISABILITY PENSION - WITHOUT GIVING A REASON - LACK OF PROPER APPLICATION OF MIND BY THE MEDICAL BOARD

In this case, the respondent Indian Air Force employee was rendered ineligible for further promotion and thereby invalidated on the ground of his being in medical category A4 G4 (Permanent). In the absence of any specific note on record as to the respondent suffering from any disease prior to his joining the service, he is presumed to have been in sound physical and mental condition while entering service as per Rule 5(a) of the Entitlement Rules.

The fact remains that the respondent employee was denied promotion on medical grounds and the deterioration in his health should therefore be presumed to have been caused due to service in the light of Rule 5(b) of the Entitlement Rules. Moreover, simply recording a conclusion that the disability was not attributable to service, without giving a reason as to why the diseases were not deemed to be attributable to service, clearly shows lack of proper application of mind by the Medical Board.

In these circumstances, the view taken by the Medical Board was rejected by the Supreme Court. Considering the facts and circumstances of the case in the light of above Rules and Regulations as well as settled principles of law, SC of the considered opinion that the Tribunal had not committed any error in awarding disability pension to the respondent for 60% disability from the date of his discharge along with 10% p.a. interest on the arrears. For all the reasons stated above, SC did not find any merit in the  appeal of the Union of India and dismissed the appeal directing the appellants to release the arrears of disability pension to the respondent within three months from today together with interest @10% p.a.

(Reference: SUPREME COURT OF INDIA CIVIL APPEAL NO. 11208 OF 2011 UNION OF INDIA & ORS. ... APPELLANTS V/S ANGAD SINGH TITARIA ... RESPONDENT,  JUDGMENT dated 24/02/2015.)