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Case Law on Service Matter
Please suggest best Case Law of Supreme Court or its bench in which the Court has ruled that Officer below the rank of Appointing Authority cannot terminate the services of its employees. I have to cite this case on my service matter which will be placed before Tribunal of Arbitration soon.
Asked 4 years ago in Labour
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is well settled in law that the power to remove an officer should be exercised by an authority not lower in rank than that of the appointing authorityunder Article 311(2) of the Constitution of India.
2) The decision in "State Bank of India v. S. Vijaya Kumar, (1991-II-LLJ-122) (SC) was cited by the learned counsel for the petitioner to contend that the amendment dated February 7, 1990 making the Chief Engineer as the appointing authority in respect of officers up to the level of Assistant Executive Engineer has no retrospective effect; and it did not apply to pending disciplinary proceedings. Charges were framed by the Managing Director against the petitioner, he appointed the enquiry officer, and the enquiry officer sent his report to the Managing Director. All that was prior to February 7, 1990. The Supreme Court in the above case dealing with Regulation 55(2)(a) of the State Bank of India so General Regulations, 1955 held that the right guaranteed in the case of Officers or employees of the State Bank is that the order of dismissal cannot be passed by an authority lower than the appointingauthority.
3)
In the above case the Apex Court saw the difference between the right guaranteed to the class of servants falling under Article 311 (1) of the Constitution of India and the right guaranteed to the employees of the State Bank of India under Regulation 55(2)(a), and has drawn the distinction based on the language used in the two provisions. Under Article 311 (1) the words used are "by which he was appointed". In Regulation 55(2)(a) these words are not found. Instead it is stated that the employees shall not be dismissed by any authority 'lower than the appointing authority'. A perusal of the rules and regulations indicated that the Chief General Manager had become the appointingauthority of the employees in question in that case under regulation 55(2)(a) with effect from July 1, 1974. Admittedly the orders of dismissal were passed long after this amendment. Therefore the employees of the State Bank could claim protection under Regulation 55(2)(a) and not under Article 311 (1) of the Constitution. It was held, that the order of dismissal passed by the Chief General Manager who had subsequently become the appointing authority, was valid. Paragraph 22 of the said judgment of the Supreme Court reads :
"Now so far as the right which has been conferred on the employees of the State Bank 35 contained in Regulation 55 (2)(a) is that such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority. Thus a comparison of the provisions contained in 4o Article 311 (1) of the Constitution and the right guaranteed to the employees of the State Bank under Regulation 55(2)(a) shows that there is a material difference between the language used in the two provisions. Under Article 311 (1) the words used are "by which he was appointed". In Regulation 55(2)(a) there are no such words "by which he was appointed" and in its place the only right guaranteed is that the employee shall not be dismissed by an authoritylower than the appointing authority. Thus the right guaranteed in case of the officers or employees of the State Bank is that the order of dismissal cannot be passed by an authority lower than the appointingauthority. A perusal of the relevant Regulations and Rules mentioned s above clearly go to show that the Chief General Manager had become the appointingauthority of the employees in question under Regulation 55 (2) (a) with effect from July 1, 1974. Admittedly the orders of dismissal have been passed long after these amendments when the Chief General Manager had already become their appointingauthority under the Regulations and the Rules. The right that an officer of employee of the State is Bank of India cannot be dismissed from service by an authority lower than the appointing autho
May I know in which services line you are working plus under state or central govt. and under which department.
Government of A.P. and Ors. vs. N. Ramanaiah (14.05.2009 - SC) (2009) 7 SCC 165
Held, Dismissal can be either by the appointing authority or by any other authority to which the appointing authority is subordinate - The dismissal of a civil servant must comply with the procedure laid down in Article 311 of Constitution of India - Rules clearly empower not only the disciplinary authority but as well as the Government to impose appropriate punishment as against delinquent public servant for proven charges of misconduct - Appeal allowed [para 10, 16]
In the judgment in Supreme Court of India
State Bank Of India & Ors. Etc vs S. Vijaya Kumar & Ors. Etc on 18 July, 1990
Equivalent citations: 1991 AIR 79, 1990 SCR (3) 398, it was discussed that:
Under Article 311(1) of the Constitution, the words used are "by which he was appointed"- In regulation 55(2)(a)there are no such words "by which he was appointed" and in its place the only right guaranteed is that the employee
shall not be dismissed by an authority lower than the appointing authority.
Thus the right guaranteed in case of the officers or employees of the State Bank is that the order of dismissal
cannot he passed by an authority lower than the appointing authority.
The guarantee clause under Article 311(1) of the Constitution of India which is relevant for our purpose reads as under:
"No person who is a member of a Civil Service of the Union or an All India Service or a Civil Service of a State or holds a Civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
There is another judgment by supreme court:
Secretary, MOD & others Vs. Prabash Chandra Mirdha dated 29.05.2012
Satinder Singh Vs. State bank of Patiala by supreme court dated 01.10.1991
There are two positions - 1st - whether rules speaks that Officer below the rank of Appointing Authority cannot terminate the services of its employee.
2nd it is interpreted by SC that Officer below the rank of Appointing Authority cannot terminate the services of its employee.
Also, order of suspension passed by a person lower in rank than the appointing authority, is not valid.
We can only answer questions here sir on facts. A particular case law can only be applied when detailed case study is done. Any half knowledge can result in citing of wrong case laws detrimental to your case
Sir for that kindly brief the facts of your matter as the case laws differ with different circumstances
- Pls . go through the Supreme Court judgement in the matter of Government of A.P. and Ors. versus N. Ramanaiah (14.05.2009 - SC) (2009) 7 SCC 165
and also State Bank Of India & Others versus S. Vijaya Kumar & Ors.
This is the law. I mean i don't understand that how a tribunal is insisting on a case law as this has been expressly stated in the constitution of India....Article 311 clause 1.
There is no need for a case law. However many judgments are available for Article 311(1).
This is basic law and there are hundreds of judgments on this.
My case, in brief, is that I was appointed vide appointment letter dated 24.01.2013 as “Assistant Placement Officer” in “Rajiv Gandhi Institute of Petroleum Technology” for a period of 05 years from the date of joining at the institute. The institute is an autonomous body under Ministry of Petroleum & Natural Gas, Government of India, located at Rae Bareli in Uttar Pradesh (now shifted to its own building at Amethi, Uttar Pradesh). It is an instrumentality of Central Government and its website address is: www.rgipt.ac.in. I joined the said Institute on the F.N. of 06 March, 2013. My contractual services were terminated by the then Director of the Institute through an order dated 28 February, 2014 without giving one/three months notice and without assigning any cause, and without ant inquiry taking excuse of condition no. 12 of the appointment letter illegally. Although "Board of Governers" was Appointing Authority for me. Since then the matter is under litigation and through a recent order dated 06.12.2019 the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench in the case of Service Single No. 24119 of 2018, ordered the Respondent-Institute to appoint the Tribunal of Arbitration within a month as per the Act of the Institute. As the Institute failed to appoint the Tribunal of Arbitration within the prescribed period of one month, I moved the High Court again for the appointment of arbitrator u/s 11(6) of Arbitration and Conciliation Act. The Court has issued Notice to the Institute and their reply is awaited. I have prepared the draft memorandum to be placed before the Tribunal of Arbitration and in the “Statement of Claim” the request to set aside the termination order of the Director of the Institute. Please go through Article 4 & 5 of the Institute Act here: https://www.rgipt.ac.in/site/writereaddata/siteContent/[deleted]Act_parliament_2007.pdf and suggest whether I can seek protection u/s 311 of Constitution of India?
Asked 4 years ago
Please go through the following link for Act (Article 4 and 5) of the Institute: https://www.rgipt.ac.in/site/writereaddata/siteContent/[deleted]Act_parliament_2007.pdf
Asked 4 years ago
If there was a specific order to establish a tribunal then the institution is in contempt if it didn't do so. A contempt application should have been filed. Anyways they haven't replied as the tribunal hasn't been established yet.
Section 4 talks about the establishment or the institute common seal etc. And section 5 talks of constitution of a board of governors and its composition.
I have read the judgement passed by the Allahabad high court. The judge has given a time limit of 1 month. You should have filed a contempt. Anyways the arbitration application is pending. Article 311 is applicable. There can be no 2 ways about it.
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Looks like this is not your personal query and you need the reply for your client.
Please conform if this is a commercial query .
- You should go through the above mentioned judgement firstly to get you reply .
You should first follow up with HC order then proceed with arbitration tribunal on merits. You have a good case on merits. If arbitration goes against you then you need to again appeal in High court
There are plenty of judgements and provision under constitution that officer below AA cannot terminate the employee.
Civil Servants are considered as the back bone of the administration. In order to ensure
the progress of the country it is essential to strengthen the administration by protecting
civil servants from political and personal influence. So provisions have been included in
the Constitution of India to protect the interest of civil servants along with the protection
of national security and public interest.
Article 311 reads as follows:
(1) No person who is a member of a civil service of the Union or an all India service
or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank
except after an inquiry in which he has been informed of the charges against him
and given a reasonable opportunity of being heard in respect of those charges.
The protective safe guards given under Article 311 are applicable to civil servants.
In State of U. P. v A. N. Singh, the Supreme Court has held that a person holds a civil post if there exists a relationship of master and servant between the State and the person holding the post.
The relationship is established if the State has right to select and appoint the holder of the post, right to control the manner and method of his doing the work and the payment by it of his wages or remuneration.
No removal by subordinate authority does not mean that the dismissal or removal must be by the same authority who made the appointment or by his direct superior.
It is enough if the removing authority is of the same or co- ordinate rank as the appointing authority.
It is mandatory under Article 311(2) to make an inquiry before the dismissal, removal or
reduction in rank of a civil servant. In that inquiry the civil servant has to be informed of
the charges against him and given a reasonable opportunity of being heard in respect of
those charges.
In Khem Chand v Union of India the Supreme Court held that the 'reasonable opportunity' means:-
(a) An opportunity to deny his guilt and establish his innocence, which he can do only if
he is told what the charges leveled against him are and the allegations on which such
charges as based.
(b) An opportunity to defend himself by cross examining the witness produced against
him and by examining himself in support of his defiance.
(c) An opportunity to make his representation as to why the proposed punishment should not be inflicted on him.
Article 311(2) Provides that reasonable opportunity of being heard is not applicable in the following cases.
(a) where a person is dismissed or removed or reduced in rank on the ground of
conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him
in rank ins satisfied that for some reason, to be recorded by that authority in
writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the
interest of the security of the State, it is not expedient to hold such inquiry
An employee who is convicted on criminal charges need not be given an opportunity to
be heard, before his dismissal from service. However in Divisional personal Officer,
Southern Railway v T. R. Chellappan the Supreme Court held that the imposition of the
penalty of dismissal ,removal or reduction in rank without holding an inquiry was
unconstitutional and illegal. The objective consideration is only possible when the
delinquent employee is being heard.
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