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ServiceLaw

Armed forces personal JCO/NCO having 10 year of service are entitled for pro rata pension from Army/Navy/Air Force like Officers on abosrption in PSU/goverment service

 

The Armed Forces personal (Especially JCO and Ors ) who have put in minimum 10 yeras of service and were absorbed in Public Sector units are now entitled for pro rata pension of their earlier service despite having not completetd 15 yeras of pensionalble service. The discrimination between commissisoned officers and JCO /ORs struck down by the Hon'ble High Court being in violation of Article 14 of Constitution of India

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There can be no doubt that in terms of Regulation 121, for the purposes of regular pension a PBOR in the IAF would be entitled to earn pension only after completing 15 years of minimum qualifying service. In fact that was the very question that arose for determination in the context of the Army in Ram Singh Yadav v. Union of India (supra). However, in the present case we are not concerned with the issue of grant of regular pension but pro rata pension. Regulation 121 is silent on the aspect of pro rata pension. It is circular/letter dated 19th February 1987 that provides for it but confines the benefit to Commissioned Officers subject to the stipulation that the officer must have completed 10 years of service and must have been absorbed in a PSU thereafter. The Petitioner here fulfils both criteria but is denied the benefit only because he was a PBOR/NCO. 20. A weak attempt was made by learned counsel for the Respondents to suggest that the Petitioner was not permanently absorbed in Air India and therefore his case may stand on a different footing. Apart from the fact that this is factually incorrect, the question really is whether there is any rational basis for holding a NCO/ PBOR like the Petitioner disentitled to pro rata pension in terms of the letter/circular dated 19th February 1987, once such PBOR has fulfilled all other conditions for grant of pro rata pension viz., completion of ten years of regular service in the Defence Services followed by absorption in a PSU. The Court is unable to find any such justification or rational basis being put forth by the Respondents to justify the discriminatory treatment. The explanation put forth that grant of the benefit to Ex-Sergeant Kalan was because his was “a special case” and should not be treated as a precedent, and on that basis to deny the Petitioner who is identically placed the same relief, does not stand legal scrutiny. 21. With the Respondents failing to answer the principal challenge by the Petitioner to discriminatory part of the circular/letter dated 19th February 1987, the Court has no hesitation in holding that the denial in terms of the said letter/circular of the benefit of pro rata pension to PBORs/NCOs like the Petitioner is violative of Article 14 of the Constitution.

22. The Court accordingly sets aside the letter dated 6th June 2016 issued by the Respondents as well as the letter dated 26th July 2016 issued by the MoD rejecting the Petitioner’s request for grant of pro rata pension. A direction is issued to the Respondents to grant the Petitioner pro rata pension from the date of his discharge from the IAF in terms of the circular/letter dated 19th February 1987. The consequential orders be issued within a period of eight weeks. The arrears of pro rata pension to be paid to the Petitioner within a period of twelve weeks thereafter. A failure to comply with the above direction would entail the Respondents having to pay simple interest at 6 % p.a. on the arrears till the date of payment. 23. The petition is disposed of in the above terms. Order be issued dasti.

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ServiceLaw

if the charge in departmental enquiry and criminal proceedings is same ,The acquittal in criminal case will lead to acquittal in departmental case aslo # supreme court#DEPARTMENTAL ENQUIRY#CRIMNIAL CASE# ACQUITTAL IN CRIMINAL CASE#ORDER FO REINSTATEMENT/PENSION

 

Supreme Court of India

G.M. Tank vs State Of Gujarat & Anr on 10 April, 2006

Author: . A Lakshmanan

Bench: Dr. Ar. Lakshmanan, R.V. Raveendran

CASE NO.:

Appeal (civil) 2582 of 2006

PETITIONER:

G.M. Tank

RESPONDENT:

State of Gujarat & Anr.

DATE OF JUDGMENT: 10/04/2006

BENCH:

Dr. AR. Lakshmanan & R.V. Raveendran

JUDGMENT:

J U D G M E N T (Arising out of S.L.P. (Civil) No. 8910 OF 2004) Dr. AR. Lakshmanan, J.

Leave granted.

 

 

The Hon,ble Court Held (Relevant)

 

In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable

acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.

In the instant case, the appellant joined the respondent in the year 1953. He was suspended from service on 8.2.1979 and got subsistence allowance of Rs.700/- p.m. i.e. 50% of the salary. On 15.10.1982 dismissal order was passed. The appellant has put in 26 years of service with the respondent i.e. from 1953-1979. The appellant would now superannuate in February, 1986. On the basis of the same charges and the evidence, the Department passed an order of dismissal on 21.10.1982 whereas the Criminal Court acquitted him on 30.1.2002. However, as the Criminal Court acquitted the appellant on 30.1.2002 and until such acquittal, there was no reason or ground to hold the dismissal to be erroneous, any relief monetarily can be only w.e.f. 30.1.2002. But by then, the appellant had retired, therefore, we deem it proper to set aside the order of dismissal without back wages. The appellant would be entitled to pension . For the foregoing reasons, we set aside the judgment and order dated 28.1.2002 passed by the learned single Judge in Special Civil appln. No. 948 of 1983 as affirmed by the Division Bench in L.P.A. No. 1085 of 2002 and allow this appeal. However, there shall be no order as to costs. “

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ServiceLaw

The Hon’ble Supreme Court –Landmark judgment- Dismissal order served on the appellant just 6 days prior to his retirement date is exorbitant and disproportionate to the gravity of misconduct.

The Hon’ble Supreme Court –Landmark judgment- Dismissal order served on the appellant just 6 days prior to his retirement date is exorbitant and disproportionate to the gravity of misconduct.

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SUPREME COURT OF INDIA

GIRISH BHUSHAN GOYAL VS. B.H.E.L. & ANR.

[CIVIL APPEAL NOS. 9868-9869 OF 2013 ARISING OUT OF SLP (C) NOS. 30883-30884 OF 2012]

[CIVIL APPEAL NOS. 9870 OF 2013 ARISING OUT OF SLP (C) NO. 30877 OF 2012]

 

V. Gopala Gowda, J.

1. Leave granted.

2. The appellant has filed two separate Civil Appeals before this Court. The Civil Appeals arising out of SLP (C) Nos. 30883-30884 of 2012 are filed questioning the correctness of the judgment and order dated 20.12.2010 passed in the Writ Petition No. 129 of 2009 (S/B) and order dated 28.6.2011 passed in the Review Application No. 431 of 2011 to the Writ Petition No. 129 of 2009 (S/B), whereas Civil Appeal arising out of SLP (C) No.30877 of 2012 is filed against the judgment dated 22.2.2011 passed in Writ Petition No. 292 of 2009 (S/B) by the High Court of Uttarakhand at Nainital, urging various facts and legal contentions in justification of his claim.

3. Through Civil Appeals arising out of SLP (C) Nos.30883-30884 of 2012, the appellant challenged the impugned order of the High Court by which the High Court dismissed the Writ Petition No. 129 of 2009 and Review Application No. 431 of 2011 filed by the appellant against the termination Order of his service. Through the Civil Appeal arising out of SLP (C) No.30877 of 2012, the appellant claims the pensionary and other monetary service benefits due to him against three decades of service rendered by him which has been withheld by the respondent- Company.

4. Necessary relevant facts are stated hereunder to appreciate the case of the appellant and also to find out whether the appellant is entitled for the relief as prayed in these appeals.

5. The appellant joined the service of the respondent-Company in 1970 and rose to the post of D.G.M. [Deputy General Manager]. He was to retire on 24.3.2009. It is the case of the appellant that four months prior to his retirement, an enquiry was initiated against him. The appellant accepted the charges of negligence on his part and also explained that the negligence was a part of the chain system which included his superiors as well as his subordinates.

6. It is further the case of the appellant that it is he who carried out a routine verification of the stock in the month of July-August, 2008 when he realized that there were some major discrepancies in the stocks of tea-leaves and milk powder in the canteen which was under his supervision by virtue of being in-charge of the canteen (HR). He therefore carried out a physical store checking and a report was prepared accordingly on 30.8.2008. The appellant thereafter, issued a notice to Sh. B.S. Rana, the in-charge of Canteen Store Operation on 10.9.2008. Since there was no reply to the aforesaid notice, the appellant informed the superior authority regarding the matter. A notice was also sent to the suppliers of the tea- leaves and milk powder. The suppliers - 'Gupta & Co.' and 'Bombay Sales' have admitted to the discrepancy in supply. They further admitted that the goods which have not been supplied against the Bill were lying with them and they were ready to supply the deficient material. However, after the conclusion of enquiry and six days prior to the retirement date of the appellant, he was served with the notice of termination.

7. It is further the claim of the appellant that his termination, which is based on the findings of the Enquiry Officer, is not sustainable for various reasons. Firstly, the report of the Enquiry Officer nowhere mentions the loss of Rs.35 lakhs caused by the appellant as is blamed against him. Secondly, no charges of embezzlement or misappropriation have been leveled against the appellant either in the charge-sheet or anywhere in the report. Thirdly, the term 'irregularity' used in the Enquiry Report has been, without any reason, converted to the term 'malpractice' in the termination order served on the appellant. Therefore, it is urged by the appellant that a bona fide mistake has been portrayed as a malicious act on the part of the appellant for extraneous reasons.

8. It is the further claim of the appellant that his superiors who were also involved in the chain of events have been relieved from any accusation. His juniors were also meted with minor punishment of stopping one increment, whereas the appellant was served with the notice of termination just six days prior to his retirement on attaining the age of superannuation thereby negating pensionary benefits for which the appellant is legally entitled to in lieu of three decades of service rendered to the respondent-Company.

9. The High Court vide its judgment dated 20.12.2010 opined that the claim of the appellant of being targeted for being a whistle blower cannot be sustained since he did not raise this issue when enquiry was being held against him. Further, even if it is presumed that the appellant was a whistle blower, the same, according to the High Court, would suggest that the appellant was aware of the people taking advantage of him to cause financial gain at the cost of the employer of the appellant. Despite that, the appellant did not produce anything on record to prove that he was doing something to protect the interest of the employer. Also, regarding the claim made by the appellant that other people against whom the charge of negligence was made were not proceeded against, it was held by the High Court that though initiating simultaneous disciplinary proceedings against other persons involved in the issue may have been possible, the appellant at no time, made any request to any authority to conduct disciplinary proceeding against him along with others.

10. In the light of the facts and circumstances of the case, the following points would arise for consideration: 1. Whether the High Court was right in dismissing the appeal filed by the appellant against the Order of his dismissal served on him by the respondent-Company? 2. Whether the appellant is entitled to the pensionary and other monetary benefits which accrued to him against the service provided by him to the respondent-Company? 3. To what relief is the appellant entitled to?Answer to point No. 1

11. While deciding on this issue, it is pertinent for us to ascertain the responsibility of the appellant against which he has been held negligent and also his role in the same. As per the Enquiry Report produced against him which is annexed with the appeal by the appellant, he was held negligent under Rules 5(5) and 5(9) of the BHEL Conduct, Discipline and Appeal Rules, 1975 (hereinafter referred to as the "BHEL Conduct Rules") for being negligent while performing his duty and acting in a manner which is prejudicial to the interest of his employer. The Enquiry Report reads as under: "....As in-charge of the canteen [HR- Canteen], it was incumbent responsibility of Shri G.B. Goyal to conscientious discharge on his side responsibility as the irregularities stated above amply prove has complicity beyond any shadow of doubt in the sordid state of affair present in the canteen operations. XXX XXX XXX Mr. G.B. Goyal has admitted the charges leveled against him as contained in the Article of charges as elaborated in Statement of Imputations of Misconduct stating that he had been negligent in the performance of his duties in the capacity of overall in-charge of canteen by placing blind reliance upon his subordinates operating in a three tier system of checking and verification".

12. From the perusal of the above findings of the Enquiry Report, the allegation of misconduct of negligence was established against the appellant under Rules 5(5) and 5(9) of the BHEL Conduct Rules. It is therefore imperative to discuss the BHEL Conduct Rules todecipher if the conduct of the appellant amounts to misconduct under theRules to attract 'major penalties' to be imposed upon him as mentioned inRule 25 of the BHEL Conduct Rules. Rule 25 of BHEL Conduct Rules reads asunder: "25(1). No order imposing any of the major penalties specified in Clause (f), (g), (h), (i) and (j) of Rule 23 shall be made except after an enquiry is held in accordance with the rule. Proceedings under this Rule may be initiated, for conduct which lends itself to both criminal prosecution as well as disciplinary action, not withstanding that a criminal case against the employee in respect of the same conduct is under investigation or trial". (Emphasis supplied)

13. The major punishment which is awarded to the appellant through the order of dismissal dated 18.3.2009, is covered under Rule 23(i) of BHEL Conduct Rules considering that the appellant had reached the age of superannuation. However, the order of termination does not mention any form of criminal charges against him, which is necessary to attract penalty under Rule 23(i) of BHEL Conduct Rules amounting to dismissal from service. On the other hand, the nature of charges leveled against the appellant was such that he omitted from performing his duty of being a responsible vigilant officer which amounted to being negligent as against being an active participant in colluding with the employees against his employer and acting against the interest of the Company.

14. The consequence of the dismissal order served on him at the end of his service tenure not only results in inflicting disproportionate punishment on him in terms of bad name and reputation, but also deprives the appellant of his retiral benefits for which he has got statutory entitlement for rendering three decades of service to the Company whereas his negligence attracts minor penalty under Rule 23 of BHEL Conduct Rules. It is pertinent to mention the observation made on this issue by this Court on the premise of similar facts and circumstances. In the case of Surendra Prasad Shukla v. State of Jharkhand & Ors.[1], at paras 9-10, this Court held as under: "9. There was no charge against the appellant that he had in any way aided or abetted the offence under Section 392 IPC or that he knew that his son had stolen the car and yet he did not inform the police. The appellant, as we have held, was guilty of negligence of not having enquired from his son about the car kept in front of the government quarters occupied by him. The appellant had served the Government as a Constable and thereafter as a Head Constable from 7-8-1971 till he was dismissed from service on 28-2-2005 i.e. for 34 years, and for such long service he had earned pension. In our considered opinion, the punishment of dismissal of the appellant from service so as to deprive him of his pension for the service that he had rendered for 34 long years was shockingly disproportionate to the negligence proved against him. 10. We accordingly, allow this appeal in part and modify the punishment of dismissal from service to compulsory retirement. The LPA and the writ petition filed by the appellant before the High Court are allowed in part. There shall be no order as to costs."

15. Therefore, in view of the principle laid down by this Court in the above referred case, we are of the opinion that dismissal order served on the appellant just 6 days prior to his retirement date is exorbitant and disproportionate to the gravity of misconduct particularly, because he was not involved in active collusion with the other employees of the Company who were involved in this incident, for causing financial loss to the respondent-Company but was negligent by an act of omission. We also should not lose sight of the fact that the appellant took steps to retrieve the materials which were due against the Bill from the suppliers which rectified the error. Accordingly, the order of dismissal served on him is liable to be quashed and is accordingly, quashed.

However, we cannot lose sight of the fact that his negligence has caused financial loss to the respondent-Company. Therefore, keeping at par with the punishment awarded to Sh. B.S. Rana on ground of misconduct in terms of demotion to lower grade for 3 years as per letter dated 6.6.2011 from Central Public Information Officer, we award the similar punishment of deduction of one year increment on the appellant as per Rule 23 (b) of the BHEL Conduct Rules since the appellant already reached the age of superannuation when the order of dismissal was served on him. Accordingly, the Civil Appeals arising out of SLP (C) Nos.30883-30884 of 2012 are allowed.Answer to point Nos. 2 and 3

16. Since, we have answered point No. 1 in affirmative while allowing the Civil Appeals arising out of SLP (C) Nos.30883-30884 of 2012 and the dismissal order served on the appellant is quashed, the appellant becomes entitled to all the retiral and pensionary benefits under the relevant Rules for which he is statutorily entitled to. Accordingly, the Civil Appeal arising out of SLP (C) No.30877 of 2012 filed by the appellant is also allowed. All the arrears in pension and other retiral benefits should be paid to him with interest at the rate of 9% per annum from the date of application till the date of payment. Since, the appellant was terminated from his service just 6 days prior to his retirement whereby there was no further possibility of any increment; his last one year increment is liable to be deducted from the arrears which he is statutorily entitled to.

17. The appeals are accordingly allowed. The respondent-Company is directed to pay the pension to which the appellant is entitled to and also the arrears due to him, within eight weeks of the receipt of a copy of this order. There will be no order as to costs.

.........................J. [SUDHANSU JYOTI MUKHOPADHAYA]

.........................J. [V. GOPALA GOWDA]

New Delhi,

November 1, 2013

[1] (2011) 8 SCC 536

 

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CriminalLaw

quashing of first information report

Quashing of First information report lodged against government Officials at the behest of private party without prior approval of prosecution by Anti Corruption Beaurue held Illegal and quashed the FIR.

 

In the Land Mark Judgment Hon’ble Rajasthan high Court jodhpur bench in S.B. Criminal Misc(Pet.) No. 159/2018 Kailash Chandra Agarwal and Anr Vs State while quashing the FIR held ,” Manifestly, the newly inserted provision prohibits conducting of enquiry/inquiry or investigation into any offence under this Act alleged to have been committed by a public servant where the act alleged is relatable to any recommendation made or decision taken by such a public servant in discharge of official functions or duties. Manifestly, the questioned decisions in furtherance whereof, the land subject matter of dispute was sold to and transferred in the name of the petitioners Kailash Chandra Agarwal and Nand Bihari, were issued by the respective public servants concerned i.e. the Land Record Inspector Chhotaram, the Patwari Ramratan and the Tehsildar Tejmal Choudhary in discharge of their official duties. Therefore, before initiating any inquiry against the public servants under the provisions of the P.C. Act, prior approval of the Government was a sine-qua-non and the FIR could not have been registered without such approval. As the public servants cannot be prosecuted in this mater, registration of the FIR by the Anti Corruption Bureau against the private individuals i.e. the petitioners Kailash Chandra Agarwal and Nand Bihari is also totally illegal and amounts to a gross abuse of process of law.

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CriminalLaw

Offences and penalties under the Disaster Management Act 2005

Offences and penalties under the Disaster Management Act 2005

Due to Corona virus disease, THE DISASTER MANAGEMENT ACT, 2005 has got significance and has become relevant in order to prevent and manage the epidemic. Some of the important provisions with regard to offences and penalties and jurisdiction of Hon’ble Court is summed up as follows:-

 

CHAPTER X  Deals with  OFFENCES AND PENALTIES

 

51. Punishment for obstruction, etc.—whoever, without reasonable cause— 

(a) obstructs any officer or employee of the Central Government or the State Government, or a person authorized by the National Authority or State Authority or District Authority in the discharge of his functions under this Act; or 

(b) refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act,  shall on conviction be punishable with imprisonment for a term which may extend to one year or with fineor with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years. 

 

52. Punishment for false claim.—Whoever knowingly makes a claim which he knows or has reason to believe to be false for obtaining any relief, assistance, repair, reconstruction or other benefits consequent to disaster from any officer of the Central Government, the State Government, the National Authority, the State Authority or the District Authority, shall, on conviction be punishable with imprisonment for a term which may extend to two years, and also with fine. 

 

53. Punishment for misappropriation of money or materials, etc.—Whoever, being entrusted with any money or materials, or otherwise being, in custody of, or dominion over, any money or goods, meant for providing relief in any threatening disaster situation or disaster, misappropriates or appropriates for his own use or disposes of such money or materials or any part thereof or willfully compels any other person so to do, shall on conviction be punishable with imprisonment for a term which may extend to two years, and also with fine. 

 

54. Punishment for false warning.—whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable with imprisonment which may extend to one year or with fine. 

 

55. Offences by Departments of the Government.

 

(1) Where an offence under this Act has been committed by any Department of the Government, the head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. 

 

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a Department of the Government and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any officer, other than the head of the Department, such officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. 

 

56. Failure of officer in duty or his connivance at the contravention of the provisions of this Act.—Any officer, on whom any duty has been imposed by or under this Act and who ceases or refuses to perform or withdraws himself from the duties of his office shall, unless he has obtained the express written permission of his official superior or has other lawful excuse for so doing, be punishable with imprisonment for a term which may extend to one year or with fine. 

 

57. Penalty for contravention of any order regarding requisitioning.—If any person contravenes any order made under section 65, he shall be punishable with imprisonment for a term which may extend to one year or with fine or with both. 

 

58. Offence by companies.—(1) Where an offence under this Act has been committed by a company or body corporate, every person who at the time the offence was committed, was in charge of, and was responsible to, the company, for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of such offence. 

 

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company, and it is proved that the offence was committed with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also, be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. 

 

Explanation.—For the purpose of this section— 

 

(a) “company” means any body corporate and includes a firm or other association of individuals; and 

(b) “director”, in relation to a firm, means a partner in the firm. 

 

 

59. Previous sanction for prosecution.—No prosecution for offences punishable under sections 55 and 56 shall be instituted except with the previous sanction of the Central Government or the State Government, as the case may be, or of any officer authorized in this behalf, by general or special order, by such Government. 

 

60. Cognizance of offences.—No court shall take cognizance of an offence under this Act except on a complaint made by

 

(a) the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorized in this behalf by that Authority or Government, as the case may be; or 

 

(b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence and his intention to make a complaint to the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorized as aforesaid.

 

Jurisdiction of Court under the Act.

 

71. Bar of jurisdiction of court.—No court (except the Supreme Court or a High Court) shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action taken, orders made, direction, instruction or guidelines issued by the Central Government, National Authority, State Government, State Authority or District Authority in pursuance of any power conferred by, or in relation to its functions, by this Act.

 

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