In this edition of court judgements, we shall look at the Supreme Court’s judgement on neglect of duty by a public servant, Central Administrative Tribunal’s judgement on interference of government in appointment of staff, Rajasthan High Court’s judgement on transfer of government employees, Kerala High Court’s judgements on adult’s right to choose a person to marry, order on prosecution of police officials and judgement on right of private property.
Supreme Court: To constitute a prima facie case of negligence of duty against a public servant, requires an administrative enquiry and recommendations.
In The State of GNCT of Delhi and Others vs. Praveen Kumar @ Prashant, the apex court held that the commission or omission of duty by a public servant has penal consequences if wilful neglect is recommended by an administrative enquiry, and cognizance can be taken thereafter. The absence of recommendation from the administrative enquiry would bar the courts from taking cognizance under the Schedule Caste & Schedule Tribes (Prevention of Atrocities) Act, 1989.
The two-judge bench of the apex court comprising Justice MM Sundresh and Justice S.V.N. Bhatti was hearing an appeal against the judgement of the High Court of Delhi that allowed for the prosecution of Station House Officer (SHO), Fatehpur Beri, New Delhi under section 4(2)(b) of SC & ST (Prevention of Atrocities) Act, 1989 for failing to register an FIR. The respondent claims that the SHO, allegedly influenced by the accused, refused to acknowledge the respondent’s complaint. When challenged before the ASJ, Special Judge, Saket, it was dismissed stating that a judicial remedy cannot be sought against the Spl. CP and SHO, P.S. Fatehpur Beri, since they are not judicial officers. This was challenged in the High Court which subsequently allowed for the prosecution of SHO.
Upon hearing both parties, the court formulated two issues:
The court looked at section 4 of the Act and held that Section 4(1) applies to public servants who are not members of a Scheduled Caste or Scheduled Tribe, mandating that such public servants must not wilfully neglect their duties as outlined in the Act of 1989 and the Rules of 1995. Section 4(2) enumerates specific duties for public servants, using the word “include” to indicate an extension rather than a restriction of these duties. Thus, the terms in subsection (2) should be interpreted broadly to encompass all acts that naturally fall within their meaning, as well as those explicitly stated. The key focus here is on interpreting the proviso to subsection (2) of section 4 and the subsequent legal proceedings under section 4(3). The key issue is whether an offence can be acknowledged and pursued without the recommendation of an administrative enquiry.
The court further held that Sub-section (3) of section 4 authorizes the Special Court or Exclusive Special Court to take cognizance of a public servant’s dereliction of duty as described in sub-section (2) of section 4. This reference includes the proviso’s requirement for a recommendation from an administrative enquiry. Ignoring this requirement until a later stage, such as framing the charge, would undermine the safeguard that the proviso provides to public servants regarding FIR registration or criminal proceedings. The purpose of an administrative enquiry is to determine whether the public servant’s conduct, in terms of duty failure or function, was bona fide or wilful. Addressing the merits of a public servant’s negligence of duty without the recommendation from an administrative enquiry is impermissible.
Accordingly, the judgement of the High Court of Delhi is set aside.
Central Administrative Tribunal: Executive interfering in administration strikes at the foundation of the rule of law and severely compromises judicial independence.
In Shilpi Gupta vs. Union of India and Anr, the Central Administrative Tribunal (CAT), while allowing for the regularization of three stenographers of the tribunal, took a serious exception to the interference of the ministry in its day-to-day administration.
The brief facts of the case are as follows. The applicants in these cases are Stenographer Grade-D working on an ad hoc basis at the Central Administrative Tribunal (CAT). They are challenging an order that revised their appointment terms to their detriment and are seeking regularization due to their long and continuous service. In 2012, CAT requested names from the employment exchange for ad hoc Stenographer Grade-D appointments. The applicants were appointed in the regular pay scale on 22 November 2012 with the condition that the appointment was temporary for three months or until the posts were filled permanently, with the possibility of extension or reduction based on administrative needs. Although initially temporary, their appointments continued uninterrupted, except for a one-day technical break, until 27 February 2023. At this point, their ad hoc appointments were terminated, and they were reappointed on a contract basis with a fixed salary of Rs. 40,000/-, instead of the previous regular pay scale. This new contract also mentioned an initial period of six months, extendable until the posts are filled permanently or until further orders. The applicants are aggrieved by the changes in their appointment terms and the lack of consideration for their regularization, leading them to file this Original Application (OA) with CAT.
The counsel for the applicants relied on the apex court judgement in Rajnish Kumar Mishra & Ors. vs. State of Uttar Pradesh & Ors., whereby it was emphasized the principles of parity and non-discrimination. It ruled that individuals appointed on an ad hoc basis for ten years or more, with the required qualifications and appointed following formal requisitions by competent authorities, deserve regularization. The counsel for the respondents quoted multiple judgements wherein it was held that neither the courts nor the executive have the authority to create a scheme to absorb or regularize individuals who were appointed without following a formal recruitment process.
The court looked at the order providing a revision of pay scales for the applicants. The issue revolves around objections raised by the PAO (Principal Accounts Officer) at CAT. The question arises whether the PAO, by objecting, holds authority superior to the Chairman of CAT and whether such objections justify altering the terms to the detriment of the applicant after over 11 years of service.
The applicant was appointed with the approval of the CAT Chairman to a sanctioned/vacant post that the Staff Selection Commission (SSC), an organ of the government, had not filled permanently. The court took serious objection to the counter-reply by the respondent arguing that a judicial body under the jurisdiction of the Central Government requires approval for appointing a Stenographer Grade-D and disbursing their salary.
The CAT relied on multiple judgements of the apex court such as Rojer Mathew vs. South Indian Bank Limited, Madras Bar Association vs. Union of India & Anr, whereby it was held that when tribunals or their members request financial, administrative, or any other support from a department that is also a litigant before them, there is a risk that their fairness or independence could be compromised.
Further, the Supreme Court has firmly stated that Tribunals should not operate as mere extensions of executive departments. Unfortunately, the respondents’ stance appears to relegate the Tribunal to being a subordinate entity of the Department of Personnel & Training (DoP&T). In the current case, given that her duties and responsibilities are comparable to those of regular employees, denying her regularization and its associated benefits would violate the principle of equality as guaranteed by the Constitution of India.
Accordingly, the respondents are directed to pass an order for the regular appointment of the applicant as Stenographer Grade-D with effect from the date of her initial appointment.
Rajasthan HC: Scope of Judicial Review on Transfer orders is limited; interference permitted only on account of certain malafides.
The Rajasthan High Court, in Poonam Gurjar vs. State of Rajasthan & Ors., held that the decision on which employee should be assigned to which location is solely within the administrative jurisdiction of the appropriate authority. Courts should refrain from intervening in such orders unless they are vitiated by malafides or violating any relevant statutory provisions.
The single-judge bench of Justice Sameer Jain was considering petitions that provided interim protection to the government employees. The petitioners wanted the protection to be made absolute as they were eligible for interim protection. Upon hearing the petitioners, the court held that the permissibility and extent of judicial review over transfer orders is extremely limited. The reasoning behind restricting judicial interference in transfer orders, particularly under writ jurisdiction, primarily stems from the concern that widespread chaos would ensue within the government if employees could refuse or challenge their postings based on personal preferences. By logical deduction, it becomes evident that no government could operate effectively if civil servants insisted on remaining in a particular posting indefinitely for their own convenience and familial considerations. The court relied on a plethora of apex court judgements, including the latest S.K. Nausad Rahaman vs. Union of India and Ors, whereby it was held that an employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice, and individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.
It is further held that transfers form an indispensable part of employee’s service. This importance often diminishes when employees become accustomed to a preferred location. Accordingly, the petitions are disposed of.
Kerala HC: Right of choice of an adult to choose a person to marry cannot be restricted due to parental love or concern.
The Kerala High Court, in Althaf J. Muhammed vs. The District Police Chief and Others, held that expression of choice is a fundamental right under Articles 19 and 21 of the Constitution, provided the said choice does not transgress any valid legal framework. Such choice also means that parental love or concern cannot be allowed to fluster the right of choice of an adult in choosing a man to whom she gets married.
The two-judge bench comprising Justice Raja Vijayaraghavan V and Justice P.M. Manoj was hearing a writ petition. The petitioner, a Civil Engineering graduate pursuing his Masters in Transportation Systems at the Technical University in Munich, Germany, also works part-time as a Research Assistant at the university. He is in an intimate relationship with Ms. X, who is the daughter of the 3rd respondent. Ms. X holds a postgraduate degree (MTech) and is employed as a Project Engineer at NATPAC in Thiruvananthapuram.
The petitioner and the 3rd respondent belong to different religions, and the 3rd respondent opposes their relationship. According to the petitioner, Ms. X is being unlawfully detained against her wishes by the 3rd respondent. Ms. X confirmed this during a video conference with the court and expressed her desire to be with the petitioner. Upon the court’s order, Ms. X was produced before them, and they interacted with her, the 3rd respondent, and the petitioner in person. Ms. X affirmed her employment at NATPAC and stated she is 27 years old. She reiterated her wish to be with the petitioner.
Relying on the apex court judgement in Shafin Jahan vs. Asokan K.M and Anuj Garg and Others vs. Hotel Association of India and others, wherein it was held that the right to marry a person of one’s choice is intrinsic to Article 21 of the Constitution and Society has no authority to dictate the decisions regarding the choice of partners, the bench stated that parental love or concern cannot be allowed to fluster the right of choice of an adult in choosing a man to whom she gets married.
Accordingly, Ms. X is permitted to be set at liberty so that she may join the petitioner.
Kerala HC: The State must ensure that when public properties are used for any purpose, it is done in a way which is least inconvenient and least injurious to its subjects.
The Kerala High Court, in Elsy Abraham vs. State of Kerala and Others, held that the State acts as a trustee for public properties and is obligated to safeguard the interests of its citizens, who are the beneficiaries. It must ensure that the utilization of public properties is carried out in a manner that is least inconvenient and least injurious to its subjects.
The single judge bench headed by Justice M.A. Abdul Hakhim was hearing a writ petition by the petitioner who is the owner in possession of 1 Acre 40 cents of property abutting Punaloor-Muvattupuzha State Highway. The petitioner’s contention is that when the original road alignment was changed to straighten a curve near their property, the unused land from the old alignment is now being considered for construction by the 2nd and 3rd respondents. They intend to build a Hotel-Cum-Public Latrine-Complex on this land. The petitioner argues that constructing such a complex would block their access to the highway, which they assert is legally impermissible as they have a right of access from all points of their property touching the highway, as per established legal principles. The 3rd respondent, the Grama Panchayat, plans to construct a Community Sanitation Complex as part of the ‘take a break’ project initiated by the State Government. This project aims to build 2165 quality Community Sanitation Complexes along National and State Highways to provide refreshment facilities for travellers. The strip of land identified between the petitioner’s property and the State Highway is deemed suitable for this purpose, as it is the only available land within the jurisdiction of the 3rd respondent Grama Panchayat.
Having heard both counsels, the court looked at the grounds for support by the petitioner.
Relying on the apex court’s judgements on Common Law Principles, the Kerala High Court held that if the Common Law Principle is enforced in strict sense there cannot be any development or change to the public road. Hence, the contention of the petitioner that the said vacant land cannot be used for constructing the Complex is unsustainable. Further, the consequences of restricting such developments on grounds that they violate the private right of access would be disastrous.
If the petitioner’s claim of private right of access is upheld, the valuable vacant land owned by the Government might remain unused indefinitely. Accordingly, the respondents have the right to use the vacant land, but they must first ensure that the petitioner has reasonable access from their property to the public road. Further, the State, as a Trustee of public properties, is bound to protect the interests of its subjects who are also its beneficiaries.
Accordingly, the writ petition is disposed of.
Kerala HC: Prior State Sanction is required for taking cognizance of offences committed by Police Officers while acting or purporting to act in discharge of official duties.
The Kerala High Court, in Joji Joseph vs. State of Kerala, held that police officials cannot be prosecuted for actions during Official duty without prior Government Sanction under Section 197 CrPC.
The single-judge bench headed by Justice P.G. AjithKumar was hearing a criminal appeal against the judgement of the appellate court that acquitted all the accused, in this case, police officials. The brief facts of the case are as follows. Four police officials were accused of forcibly taking the complainant to a police jeep and physically torturing him in 1996. The Judicial Magistrate of the First Class-II (Mobile), Kottayam, convicted all four officials under various sections, while the appellate court, Additional Sessions Court (Adhoc)-II, Kottayam, acquitted them. The court found that the complainant was taken into custody in connection with a case against him and that the accused were acting in the discharge of their official duties. As no government sanction had been obtained to prosecute them, the court ruled that the prosecution was not permissible and acquitted the accused. This is challenged under the current appeal.
The counsel for the complainant argued that the complainant, his wife, and his children were manhandled in public, and he was detained illegally at the police station. These acts were not related to the official duties of the accused, so no sanction under Section 197 of the Code is required for their prosecution. The counsel for the accused submitted that the complainant’s presence was required for medical examination, and no such manhandling was done.
Having heard both sides and looking at the relevant provisions of Section 197 of the CrPC, and judgements later on, the High Court held that it is well established that, according to a notification issued under Section 197(3) of the Code, the protection provided by Section 197(2) of the Code applies to members of the Kerala Police force charged with maintaining law and order. Therefore, if a member of the Kerala Police commits an offence while acting or claiming to act in the discharge of their official duty, the Court cannot take cognizance of such an offence without the prior sanction of the State Government as required by Section 197(2) and (3) of the Code.
The only question that arises is whether the officials were acting or claiming to act in the discharge of their official duty at the relevant time, whose interpretation has been examined by apex court in various judgements such as Baijnath & Others vs. State of Madhya Pradesh etc.
The alleged act must have reasonable nexus with the discharge of their official duty to attract sanction under Section 197(1) of the Code. It does not matter whether the policeman has exceeded the scope of his power and/or acted beyond the four corners of the law. In such a case, it was held that sanction is required for the prosecution. However, it does not extend to provide authority to manhandle the accused.
The court, in this case, held that the complainants’ allegations were done as part of their official duty, and hence the view taken by the appellate court in that regard is correct and legal. Accordingly, the appeals are dismissed.
