Tag Archives: Suspension

Suspension – In contemplation of Enquiry

The purpose of suspension of an employee in service jurisprudence is two fold. The traditional and dominant purpose of suspension is to aid and assist a disciplinary enquiry against an employee. Suspension in such cases is not a punishment. The second known purpose of suspension is to impose it as a punishment.

        When suspension is made in contemplation of a disciplinary enquiry, certain prerequisites have to be satisfied. An enquiry should be contemplated or underway into charges of misconduct. The charges of misconduct, if proved, should be serious enough to warrant a major penalty.

        The order of suspension should be passed after due and independent application of mind. The suspension should not be made as a matter of routine resulting from a suspension syndrome.

        At the stage of suspension the veracity of the charges cannot be ascertained and the merits of the defence cannot be examined. However, the order of suspension should disclose a prima facie act of misconduct.

        Suspension in contemplation of an enquiry, is made to aid the process of enquiry. Suspension takes out the delinquent employee from his domain of influence. This ensures that the enquiry is independent and fair.

        Suspension also takes off the charged employee from his regular duties. This enables the employee to join the enquiry proceedings and give fulsome cooperation to the enquiry officer. It also gives him adequate time to prepare his defense. Continuing the employee on regular duties, with an enquiry on foot, would not be in institutional interests either. The official work would suffer and the enquiry proceedings would be impeded. The suspension in such cases is not a punishment. Deepika Shukla v. State Of U.P., 2018 (6) AWC 6050.

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Compulsory Retirement — Subjective Satisfaction

The Hon’ble Apex Court in re: S. Ramachandra Raju v. State of Orissa, 1994 Supp (3) SCC 424, has held that the subjective satisfaction must be based on adverse material of the incumbent. It was held as under:

“In Baikuntha Nath Das v. Chief District Medical Officer, (1992) 2 SCC 299, a bench of three Judges of the Hon’ble Apex Court was to consider whether uncommunicated adverse remarks would be conisered to order compulsory retirement. The Court considering the scope of Fundamental Rule 56(j) on the anvil of administrative law, held that the order of compulsory retirement has to be passed on forming the opinion that it is in the public interest to retire a Government Servant compulsorily though the order is passed on the subjective satisfaction of the Government, the Government or the Review Committee shall have to consider the entire record of service before taking a decision in the matter, of course, attaching more importance to record of and performance during the later years. The record so considered would naturally include the entries in the confidential records, character rolls, both favourable and adverse. The order of compulsory retirement is not liable to be quashed on mere showing that while passing it, uncommunicated adverse remarks were taken into consideration. Further, this does not mean that judicial scrutiny is excluded altogether. Though the court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order if mala fide or passed on no evidence or that is arbitrary, in the sense that no reasonable person would form the requisite opinion or the given material, in short, if it is found to be a perverse order, the remedy under Article 226 is an important safeguard, since the remedy is an effective check against arbitrary, mala fide or perverse actions.”  Mukhtar Ahmad v. State of U.P., 2018 (3) ESC 1432.

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Employment Law – Double Jeopardy

The concept of double jeopardy, to some extent, is allergic to service law. The Supreme Court has made it clear in as many cases as one can think of (a) that imposition of a punishment and the denial of promotion did not amount to double jeopardy and (b) that the conviction by a criminal court and the disciplinary proceedings initiated on the basis of conduct which led to the conviction or on pure questions of misconduct, did not amount to double jeopardy. Reference in this regard may be had to a Full Bench judgment of the Madras High Court reported in the case of Manikandan and others v. Chairman, Tamil Nadu Uniformed Services, Recruitment Board, Chennai and Others, (2008) 2 MLJ 1203.

In the case of R. Viswan v. Union of India, (1983) 3 SCC 401, the issue of double jeopardy was discussed and in that case Government servant was punished for the same misconduct both under the Army Act as well as under Central Government Rules, and it was held that, two proceedings under the army Act and the Central Government Rules operate in two different fields though the crime or the misconduct might arise out of one and the same Act. The Martial Court proceedings deals with the penal aspect of misconduct while proceedings under the Central Government Rules deals with disciplinary proceedings in respect of the misconduct. Therefore, it was held that it does not amount to double jeopardy. Dashrath Singh v. Andhra Bank, 2016 (150) FLR 540.

 

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Increments – During Suspension

Increment has a definite concept in service law jurisprudence. It is an increase or addition on a fixed scale; it is a regular increase in salary on such a scale. As noted in SBI v. Central Government Labour Court, (1972) 3 SCC 595, under the labour and industrial laws, an increment is when in a timescale of pay an employee advances from the lower point of scale to the higher by periodic additions. In other words, it is addition in the same scale and not to a higher scale. An increment is an incidence of employment and an employee gets an increment by working the full year and drawing full salary. During the period of suspension, the contract of service remains suspended. The order of suspension by the departmental enquiry has the effect of temporarily suspending the relations between the master and servant with the consequence that the servant is not bound to render service and, therefore, an employee is not entitled to increments during this period which is taken as period not spent on duty. State of Punjab v. Jaswant Singh Kanwar, (2014) 13 SCC 622.

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