Article 311(1) Guarantees Right To Fair Enquiry to Govt Employees: Karnataka High Court


Case No:-WRIT PETITION NO.21705 OF 2021 (S-RES)

Decided on:-18-03-2024


Facts of the case:-

The case at hand concerns the Governing Council’s disciplinary proceedings against the petitioner which led to a recommendation for the petitioner’s mandatory retirement and as a result the Disciplinary Authority, respondent No. 3-Registrar has sent out a second show-cause notice signaling the imposition of a penalty. This has raised concerns about procedural inconsistencies and possible violations of Article 311(1) of the Indian Constitution. In light of this, the petitioner in the captioned petition has contested the respondent No. 2’s contested order imposing a mandatory retirement penalty, which is listed in Annexure-A.


Learned counsel of petitioner states that in the present case on hand, petitioner is challenging imposition of penalty of compulsory retirement recommended by the Governing Council and the subsequent issuance of second show cause notice by Respondent No.3. This Court in the light of the judgments cited by the counsel on record has deliberated on Constitutional and legal provisions along with pertinent precedents. Article 311(1) of the Constitution of India Guarantees certain safeguards to Government employees including the right to fair enquiry before any adverse action is taken against the employees. This constitutional provision ensures that no Government employee is deprived of their livelihood arbitrary or without due process. It would be useful for this Court to take cognizance of the Landmark judgment rendered by the Hon’ble Apex Court in The case of Managing Director, ECIL Hyderabad and Others vs. B. Karunakar and Others.The Hon’ble Apex Court while examining the employees right to have a reasonable opportunity to refute and offer his explanation to the findings recorded by the Enquiry Officer was of the view that right to show cause against the findings of the enquiry report is considered to be an essential part of a reasonable opportunity incorporated earlier in Section 240(3) of Government of India Act and later in Article 311(2) of Constitution as originally enacted.

The Apex Court was of the view that right to receive the enquiry officer’s report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The Apex Court while noticing the anomaly prior to amendment and post 42nd amendment to Article 311 of the Constitution Of India was of the view that the two rights came to be confused with each other as the law stood prior to 42nd Amendment to the constitution. The Apex Court noting that 42nd amendment of constitution dispenses with issuance of notice to show cause against the penalty proposed held that if the law as it stood prior to 42nd amendment and notice is issued to show cause against the proposed penalty the right of employee to receive the report and represent against the finding of guilt would be rendered infructuous. What can be gathered from the dictum laid down by the Apex Court is that prior to 42nd amendment, both issuance of show cause notice and the commencement of disciplinary proceedings are simultaneous. However, subsequent amendments preclude such concurrent actions. Amending the sequential process wherein show cause notice must precede by furnishing of enquiry report on the delinquent employee. The culled out portion of the proceedings of the governing council clearly indicates that it is the Governing Council by recommending to impose penalty has virtually Preempted the right of the Disciplinary Authority to receive explanation and then apply its mind as to whether this is a fit case to impose penalty. Therefore, it is clearly evident that respondent No.3/Registrar/Disciplinary Authority being Sub-ordinate to the Governing Council had no discretion to independently evaluate the situation or apply its own judgment.

Court Analysis and Judgement:-

Court stated that the writ petition is allowed; The impugned penalty of compulsory retirement passed by the respondent No.2 as per Annexure-A is hereby quashed; The respondent No.3-Disciplinary Authority is hereby directed to adhere to the Mandate of the Hon’ble Apex Court in the Judgment cited supra and also take cognizance Of Article 311(1) of the Constitution of India and shall issue a fresh show cause notice in accordance with law; If such a show cause notice is issued, liberty is reserved to the petitioner to offer fresh explanation and the respondent No.3 shall thereafter proceed to take appropriate action by strictly adhering to the findings and observations recorded by this court supra.

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Judgement Analysis Written by – K.Immey Grace

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Delhi High Court Dismissed the writ of certiorari and granted petitioner liberty to argue their matter before Armed forces tribunal


Reserved on: 14th July, 2023

Pronounced on: 18 th July, 2023

+ W.P.(C) 3042/2023 & CM APPL. 11815/2023




Delhi High Court Dismissed the writ of certiorari and granted petitioner liberty to argue their matter before Armed forces tribunal, Keeping in mind the principles outlined in the judgment of Squadron Leader Neelam Chahar and also keeping in mind a more prudent redressal path for petitioner which is more efficient and effective.

Facts of the case

The petitioners, who were ‘premature retirees’ from the Indian Army and Air Force, held Permanent Commissions before their early retirement. According to them, their retirement pension and other perks were Due to their failure to fulfil the required twenty years of service, which is a requirement for getting a full pro-rata service pension, it was unjustly denied to them.

The Petitioners were allegedly forced to retire early after successfully completing 10 years of service, but before reaching the twenty-year milestone, due to reasons beyond their control. Despite the fact that this early exit was approved by the appropriate authority, the petitioners argued that the respondents had conveniently ignored the pre-commissioning military training and reserve service periods, which when taken into account would total more than the required twenty years of service for the grant of a service pension. They should be qualified for the pension because these periods were essential and contributed to their overall service time.

The Petitioners demand service pension, even on a pro rata basis, due to them on reason of their early retirement, based on the afore-noted inconsistencies in computation of their service periods and application of criteria for providing benefits to them.

They had previously filed a writ petition [W.P.(C) 11893/2021], but due to the nature of the reliefs requested, it was rejected by order dated October 22, 2021, with the liberty to continue agitating the subject by launching a public interest lawsuit [“PIL”].

Petitioners elucidated their personal interest in the matter and urged the Court to consider their case within the ambit of the aforesaid writ petition, rather than as a PIL.

The policy dated February 19, 1987, which reportedly served as the basis for Respondents’ decision to deny benefits of pro-rata pension and other benefits like pension commutation and ex-servicemen status, was among the policies that Petitioners sought to have declared invalid in the instant petition in the nature of a PIL. They also sought a writ of certiorari to overturn the existing policy, non-statutory pension regulations, and other related instructions.

Analysis of the court

According to Regulation 34 of the Pension Regulations for the Army, 2008, which stipulates a minimum qualifying service of twenty years as a prerequisite for officers to receive service or retiring pension, the impugned communication, dated April 24th, 2019, cited in the aforementioned prayer clause, is Respondents’ decision.

Respondents claim that because the Petitioners are considered premature retirees, they are not eligible to benefit from Ministry of Defence policy dated 19th February, 1987.

It is important to emphasise at this point that the Petitioners fall under the purview of the Armed Forces Tribunal Act, 2007, and have access to a specialised forum for airing their complaints, the Armed Forces Tribunal (the “AFT”). However, the Petitioners opted to file a writ petition before this Court given to the ambiguity surrounding AFT’s ability to consider issues about the constitutionality of subordinate legislations, including rules, regulations, notices, and circulars.

Fortunately for the Petitioners, a recent decision by the full bench of this Court in Squadron Leader Neelam Chahar v. Union of India and Others, W.P.(C) 9139/2019, has clarified the issue surrounding the competence of the AFT to entertain petitions challenging circulars, statutory rules, regulations, and policies. The court held that the Armed Forces Tribunal is competent to hear the challenge to the vires of the subordinate legislations, rules, regulations, notification.

We feel that the AFT, given its specialised character, would provide a more swift determination for the Petitioners’ complaints given the recent clarification provided by the judgement mentioned above and taking into account the larger circumstances. There is no question that the Petitioners have a direct, personal interest in the issue, which usually precludes using a PIL. We are also aware that the petitioners who filed the current PIL did so with the freedom provided by a coordination bench, and that their perception of our decision to refer their case to the AFT may be unjust given that they have been exploring legal options since 2021 without receiving any redress.

However, our understanding relating to the jurisdiction of the AFT, has evolved in the wake of the judgment referenced above. Therefore, it becomes prudent to steer the Petitioners towards a path of redressal that is more fitting, efficient, and effective i.e., the AFT.

The current PIL is dismissed, together with any related ongoing petitions. The Petitioners are given the freedom to express the complaints made in their petition before the Armed Forces Tribunal while keeping in mind the guidelines provided in the aforementioned Squadron Leader Neelam Chahar judgement.

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Written By – Shreyanshu Gupta

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