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Judges:
Constitution fundamental right Articles 14, 19, 21, 32, 37, 39 and 41 of Constitution
of India and Sections 312, 313 and 314 of Bombay Municipal Corporation Act, 1888
petition seeking direction against Government Order regarding demolition of dwelling
units of petitioners petitioners contended that provisions of Act of 1888 specially Section
314 ultr vires Constitution of India Section 314 empowered Municipal Commissioner to
cause to be removed encroachments on footpaths or pavements over which public have
right of passage of access without notice to affected persons Court observed that
Section 314 cannot be read to mean that Commissioner must cause removal of
encroachment without issuing previous notice Section 314 or other provisions of Act of
1888 held not to be unreasonable or violative of Article 21 as no person has right to
encroach on footpaths pavements or other place reserved for public purpose by erecting
structure on it State Government assured Court that alternative would be provided to
slum dwellers who were caused to be evicted Ordered accordingly.
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charged officer to receive the report of the inquiry officer was an essential part of the first
stage itself. This was expressed by the Court in the following words:
"The reason why the right to receive the report of the enquiry officer is considered an
essential part of the reasonable opportunity at the first stage and also a principle of natural
justice is that the findings recorded by the enquiry officer form an important material before
the disciplinary authority which along with the evidence is taken into consideration by it to
come to its conclusions. It is difficult to say in advance, to what extent the said findings
including the punishment, if any, recommended in the report would influence the disciplinary
authority while drawing its conclusions. The findings further might have been recorded
without considering the relevant evidence on record, or by misconstruing it or unsupported
by it. If such a finding is to be one of the documents to be considered by the disciplinary
authority, the principles of natural justice require that the employee should have a fair
opportunity to meet, explain and controvert it before he is condemned. It is negation of the
tenets of justice and a denial of fair opportunity to the employee to consider the findings
recorded by a third party like the enquiry officer without giving the employee an opportunity
to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its
own findings on the basis of the evidence recorded in the inquiry, it is also equally true that
the disciplinary authority takes into consideration the findings recorded by the enquiry
officer along with the evidence on record. In the circumstances, the findings of the enquiry
officer do constitute an important material before the disciplinary authority which is likely to
influence its conclusions. If the enquiry officer were only to record the evidence and forward
the same to the disciplinary authority, that would not constitute an additional material
before the disciplinary authority of which the delinquent employee has no knowledge.
However, when the enquiry officer goes further and records his findings, as stated above,
which may or may not be based on the evidence on record or are contrary to the same or in
ignorance of it, such findings are an additional material unknown to the employee but are
taken into consideration by the disciplinary authority while arriving at its conclusions. Both
the dictates of the reasonable opportunity as well as the principles of natural justice,
therefore, require that before the disciplinary authority comes to its own conclusions, the
delinquent employee should have an opportunity to reply to the enquiry officer's findings.
The disciplinary authority is then required to consider the evidence, the report of the
enquiry officer and the representation of the employee against it."
21. Under Regulation - 6 the inquiry proceedings can be conducted either by an inquiry
officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry
officer his report is not final or conclusive and the disciplinary proceedings do not stand
concluded. The disciplinary proceedings stand concluded with decision of the disciplinary
authority. It is the disciplinary authority which can impose the penalty and not the inquiry
officer. Where the disciplinary authority itself holds an inquiry, an opportunity of hearing has
to be granted by him. When the disciplinary authority differs with the view of the inquiry
officer and proposes to come to a different conclusion, there is no reason as to why an
opportunity of hearing should not be granted. It will be most unfair and iniquitous that
where the charged officers succeed before the inquiry officer they are deprived of
representing to the disciplinary authority before that authority differs with the inquiry
officer's report and, while recording a finding of guilt, imposes punishment on the officer. In
our opinion, in any such situation the charged officer must have an opportunity to represent
before the Disciplinary Authority before final findings on the charges are recorded and
punishment imposed. This is required to be done as a part of the first stage of inquiry as
explained in Karunakar's case (supra).
IN THE SUPREME COURT OF INDIA
Civil Appeal Nos. 194-202 of 1986
Decided On: 02.05.1990
Appellants:The Direct Recruit Class-II Engineering Officers' Association and
others
Vs.
Respondent:State of Maharashtra and others
Hon'ble Judges:
Sabyasachi Mukherjee, C.J, L. M. Sharma, S. Ratnavel Pandian, P. B. Sawant and K.
Ramaswamy, JJ.
Service Seniority - Article 32 of Constitution of India, 1950 Whether seniority in service
between direct recruits and promotees be on same platform Held, State was under a duty to
prepare fresh seniority lists for particular period and this was done after framing Rules No
merit in challenge to Rules and thus writ petitions fit to be rejected Petition raised by an
application under Article 32 of Constitution must be held to be barred by principles of res
judicata including rule of constructive res judicata In view of findings Court did not find any
merit in any of civil appeals, writ petitions and special leave petitions which accordingly
dismissed.
K.
Judges:
Sabharwal,
C.J., Arun
Kumar, G.
P.
Mathur, C.
K.
Thakker and P.
K.
Balasubramanyan, JJ.
Constitution of India - Articles 14, 16 and 142--Employment--Regularisation-Confirmation--Daily wagers, temporary employees and contractual employees -- Legal
position under constitution scheme settled--No legitimate expectation--Decisions of
Supreme Court holding to contrary held not laying down any precedent -- General
directions issued--Directions under Article 142 also issued in respect of daily wagers of
Commercial Tax Department of State of Karnataka.
Regular recruitment should be insisted upon, only in a contingency an ad hoc appointment
can be made in a permanent vacancy, but the same should soon be followed by a regular
recruitment and appointments to non-available posts should not be taken note of for
regularization. The cases directing regularization have mainly proceeded on the basis that
having permitted the employee to work for some period, he should be absorbed, without
really laying down any law to that effect, after discussing the constitutional scheme for
public employment.
Regularisation is not and cannot be the mode of recruitment by any State and it cannot
give permanence to an employee whose services are ad hoc in nature.
A. Umarani v. Registrar, Co-operative Societies, (2004) 7 SCC 112 (Three-Judge Bench),
approved.
were to void a contractual employment of this nature on the ground that the parties were
not having equal bargaining power, that too would not enable the Court to grant any relief
to that employee. The argument that since one has been working for some time in the
post, it will not be just to discontinue him, even though he was aware of the nature of the
employment when he first took it up, is not one that would enable the jettisoning of the
procedure established by law for public employment and would have to fail when tested
on the touchstone of constitutionality and equality of opportunity enshrined in Article 14
of the Constitution of India.
The invocation of the doctrine of legitimate expectation cannot enable the employees to
claim that they must be made permanent or they must be regularized in the service
though they had not been selected in terms of the rules for appointment. The fact that in
certain cases the Court had directed regularization of the employees involved in those
cases cannot be made use of to found a claim based on legitimate expectation. The
argument if accepted, would also run counter to the Constitutional mandate. When a
person enters a temporary employment or gets engagement as a contractual or casual
worker and the engagement is not based on a proper selection as recognized by the
relevant rules or procedure, he is aware of the consequences of the appointment being
temporary, casual or contractual in nature. Such a person cannot invoke the theory of
legitimate expectation for being confirmed in the post when an appointment to the post
could be made only by following a proper procedure for selection and in concerned cases,
in consultation with the Public Service Commission. Therefore, the theory of legitimate
expectation cannot be successfully advanced by temporary, contractual or casual
employees. It cannot also be held that the State has held out any promise while engaging
these persons either to continue them where they are or to make them permanent. The
State cannot constitutionally make such a promise. It is also obvious that the theory
cannot be invoked to seek a positive relief of being made permanent in the post. Those
who are working on daily wages formed a class by themselves, they cannot claim that
they are discriminated as against those who have been regularly recruited on the basis of
the relevant rules. No right can be founded on an employment on daily wages to claim
that such employee should be treated on a par with a regularly recruited candidate, and
made permanent in employment, even assuming that the principle could be invoked for
claiming equal wages for equal work. There is no fundamental right in those who have
been employed on daily wages or temporarily or on contractual basis, to claim that they
have a right to be absorbed in service. They cannot be said to be holders of a post, since,
a regular appointment could be made only by making appointments consistent with the
requirements of Articles 14 and 16 of the Constitution. The right to be treated equally
with the other employees employed on daily wages, cannot be extended to a claim for
equal treatment with those who were regularly employed. That would be treating
unequals as equals. It cannot also be relied on to claim a right to be absorbed in service
even though they have never been selected in terms of the relevant recruitment rules.
A mandamus may issue to compel the authorities to do something, it must be shown that
the statute imposes a legal duty on the authority and the aggrieved party had a legal
right under the statute or rule to enforce it. This classical position continues and a
mandamus could not be issued in favour of the employees directing the Government to
make them permanent since the employees cannot show that they have an enforceable
legal right to be permanently absorbed or that the State has a legal duty to make them
permanent.
There may be cases where irregular appointments (not illegal appointments) of duly
qualified persons in duly sanctioned vacant posts might have been made and the
employees have continued to work for ten years or more but without the intervention of
orders of Courts or of Tribunals. The question of regularization of the services of such
employees may have to be considered on merits in the light of the principles settled by
this Court in the cases above referred to and in the light of this judgment. In that context,
the Union of India, the State Governments and their instrumentalities should take steps to
regularize as a one-time measure, the services of such irregularly appointed, who have
worked for ten years or more in duly sanctioned posts but not under cover of orders of
Courts or of Tribunals and should further ensure that regular recruitments are undertaken
to fill those vacant sanctioned posts that require to be filled up, in cases where temporary
employees or daily wagers are being now employed. The process must be set in motion
within six months from this date.
Judges:
Decidendi:
"Person shall entitle for admission as per qualification in each and every test held by
authority in institute."
(i) Constitution - amendment - Articles 13, 14, 19, 31-A, 31-B, 31-C, 32, 38, 132, 133,
134, 141, 226, 352 and 368 of Constitution of India - vires of Articles 368 (4) and 368 (5)
introduced by Section 55 of Constitution of India (43rd Amendment) Act under challenge Article 368 (5) conferred upon Parliament unlimited power to amend Constitution - Article
368 (4) deprived Courts of its power of judicial review over constitutional amendments Article 368 (5) struck down as Parliament had only limited amending power - such limited
power cannot be enlarged into absolute power - by expanding its amending powers
Parliament cannot destroy its basic structure - donee of limited power cannot convert
such power into unlimited one - Article 368 (4) prohibiting judicial review violates basic
structure - held, Articles 368 (4) and 368 (5) unconstitutional.
(ii) Directive principles of State policy - whether directive principles can have supremacy
over fundamental rights - merely because directive principles are non-justiciable it does
not mean that they are subservient to fundamental rights - destroying fundamental rights
in order to achieve goals of directive principles amounts to violation of basic structure giving absolute primacy to one over another disturbs harmony - goals of directive
principles should be achieved without abrogating fundamental rights - directive principles
enjoy high place in constitutional scheme - both fundamental rights and directive
principles to be read in harmony - held, amendments in Article 31C introduced by Section
4 of 42nd Amendment Act unconstitutional.
Judges:
Case
Notes:
The case dealt with the validity of the order of temporary injunction restraining the party
from proceeding with suit in the another State Further, the inherent powers of the Court
to grant such injunction were discussed It was held that the order of injunction was
wrongly was wrongly granted and should be vacated The Civil Courts had inherent
power to issue temporary injunction in cases which were not covered by the provisions of
Order 39 of the Civil Procedure Code, 1908 Further, a plaintiff of a suit in another
jurisdiction could only be restrained from proceedings with his suit if the suit was
vexatious
and
useless.
Judges:
The appellant instituted a suit against the third respondent, for a declaration that she was
his legally wedded wife Though, the respondent filed a written statement admitting the
claim, but at the same time, respondent 1 and 2 filed as suit for being added as a party to
the suit as defendants as they were wife and daughter of the third respondent It was
questioned whether the respondent 1 and 2 as parties to the case was legal It was held that
according to the averments in the plaint only the third respondent but the other members of
his family including respondents 1 and 2, were interested in denying the appellants status
as a legally wedded wife, hence respondents 1 and 2 were proper parties to the suit
Property
plaintiffs
previous
action in
Judges:
claim Section 11 and Order 11 of CPC, 1908 appellants were tenants under
and were already in possession of land whether cause of action on basis of which
suit filed is identical to cause of action on which subsequent suit filed cause of
subsequent suit was entirely different Order of High Court modified.
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The case questioned whether the amendment made in the complaint filed by the
appellants could be allowed The appellants filed a suit for damages against the
respondents, who were the agents of the appellants, on the grounds that the respondents
had refused to deliver those goods as ordered by the appellants - It was found that a
fresh suit on the amended claim was barred by the limitation on the date when the
application had been filed It was held that the said amendment should be allowed
Also, the restriction to the fresh suit should be taken into consideration while taking the
decision regarding the amended plaint It should also not affect the power of the Court
to
pass
such
order
if
required
in
the
interest
of
the
justice
Judges:
The case questioned whether the application filed by the plaintiff regarding amendment to
be made in the complaint without altering the nature of reliefs filed by the plaintiff could
be allowed under Order 6, Rule 17, Order 21, Rules 97, 99 and 103 of the Code of Civil
Procedure The amendment was made by adding further and better particulars of the
claim A fresh suit on the amended plaint was barred by the limitation on the date when
the said application was made The trial judge rejected the application and dismissed the
suit but , the High Court had allowed the application It was held that the application for
amendment was rightly allowed by the High Court - Although, the said application was
made after the expiry of the limitation period, therefore, the appellant should not file a
new
case
Hon'ble
Judges:
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Judges:
Sudhi Ranjan Das, C.J., Syed Jaffer Imam and T. L. Venkatarama Aiyar, JJ.
Transfer of Property Act , s.52 Indian Limitation Act (IX of 1908), Art. 142 In the
execution proceeding, nonjoinder of Receiver in insolvency - Effect Transferee pedente lite
,if entitled to attack execution sale on that ground.
Judges:
merits
appeals
dismissed.
Judges:
The case debated on whether the copy of award duly certified to be true copy by the
umpire and then signing the award could be considered as a true copy as required under
Section 14(2) of the Indian Arbitration Act (10 of 1940) It was held that the document
was an accurate and full reproduction of the original and was a copy of the same Thus the
document was a copy of the original and was a signed copy, as it was bearing the
signature of the umpire.
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their behalf not maintainable - union sought Order of injunction in Civil Court - suit for
permanent injunction not maintainable as Civil Court had no jurisdiction to grant relief.
(ii) Termination of contract - company terminated contract under Section 19 (2) termination not accepted by union of workers - remedy available to workers was to raise
industrial dispute - suit instituted in Civil Court not maintainable.
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