Wednesday, 20 October 2021

Conduct & Disciplinary Rules - 68 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C

 Conduct & Disciplinary Rules - 68 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C

CCS Rules & Principles of Natural justice

1.    Where Article 311 (2) will not be attracted

i. Compulsory Retirement: The justification of Compulsory Retirement is in the public interest, to weed out the dead wood and maintain a high standard of efficiency and initiative in service. As a facet of doctrine of pleasure it gives an absolute right and not merely a discretion. But the test is public interest. If it is proved that an order is devoid of public interest but made with the remark that the officer has outlived his utility, the provisions of Art. 311 (2) will be attracted.

[Saksena v. State of M.P, AIR 1964 SC 449]

2. Abolition of post : When a post is temporary the abolition of such post raises no problem because appointment to a temporary post confers no right upon the employee to hold that post. The provisions of Art. 311 (2) is not plainly attracted when such employee is simply "discharged" on the abolition of the post.

[Champaklal v. Union of India, AIR 1964 SC 1854]

The case however becomes different where the abolition of a post is mala fide and has been resorted to as a mask for penal action in order to avoid Art. 311 (2).

[State of Haryana v. Saugar, AIR 1976 SC 1199]

3. Superannuation : It is competent for the Government to fix any age for superannuation and to raise or reduce it from time to time. There is no cause of action if an order raising the age is modified subsequently thus affecting those who had benefited from the previous order. It cannot be urged that enforcement of the reduced age amounts to removal.

[Bishnu Narain v. State of U.P, AIR 1965 SC 1567]

ii. The Supreme Court held that a memorandum raising the age of retirement from 55 to 58 years was only an executive instruction and not a rule under Article 309. It did not confer any legal right on the persons covered by it. No legal action can be founded on it. Thus a Government servant could be compulsorily retired any time after he has reached the age of 55 years under the memorandum, and the courts would not examine the reasons for doing so unless mala fides is imputed to the authorities.

[State of Assam % B. K. Das, AIR 1972 SC 1252.]

4. Termination of Service in accordance with Service Rules

A termination of service according to the terms of service or service rules will not amount to termination within the meaning of clause (2) of Article 311 of the Constitution.

A railway employee was discharged from service after giving one month's notice according to the terms of his agreement of service. It was held that Article 311 (2) did not apply.

[ Gopal Krishna v. Union of India, AIR 1954 SC 632.]

5. Probationer :

Briefly speaking a probationer is a person who has been appointed on trial and has no right to the post held by him. As such, discharge of a probationer at any time before he is confirmed without any imputation and without any penal consequences other than limitation of service, would not attract Art. 311 (2).

6. Discharge of probationer on ground of misconduct attracts Art. 311 (2)

Though appointment to a post on probation gives to the person so appointed no right to the post, if the discharge is ordered on ground of misconduct or the like and is attended with penal consequences or a stigma is attached to the order, Art. 311 (2) must be complied with.

[State of Punjab v. Sukhraj, AIR 1968 SC 1089]

Where the Government has by contract or under the rules, the right to terminate the employment of probationers, without going through the procedure prescribed in Art. 311 (2) the Government may choose to punish the servant and if the termination of service is founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and requirements of Article 311 must be complied with.

[P. L. Dhingra v. Union of India, AIR 1958 SC 36]


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