Case Brief: Government of India & Anr. v George Philip
Court: Supreme Court of India
Coram: G.P. Mathur , Dalveer Bhandari.
Theme: Fundamental Duties
Subject: Constitutional law
This was an appeal by Special Leave. This appeal has been brought with respect to the order and judgment given by the High Court of Kerala, this judgement (judgement given by the High Court) disposed of a writ petition (filed by the appellants) against the order of the Central Administrative Tribunal.
The respondent (George Philip) worked as a Scientific Officer in Plasma Physics Division, Bhabha Atomic Research Centre, Mumbai. He applied for Commonwealth Scholarship by the Ministry of Education and was granted the same. With respect to this scholarship he moved an application to seek permission of the Central Government to get a leave for two years for the said purpose. “duration and purpose of visit” was one of the columns in the application. In that column details were accordingly filled by the respondent (advance research training in Plasma Physics). The permission was accordingly granted by the Central Government (extraordinary leave for two years no extension possible).
However, the respondent did not return after expiry of the period of leave despite the fact that 8 notices were sent to him by the Central Government. The respondent returned after more than 2 years from the date of expiry. However, he was put on suspension pending enquiry. After a detailed perusal of the document filed by the respondent and cross examination the enquiry officer came to a conclusion that the respondent had overstayed and the charge on him was perfectly valid. After this the Secretary (GOI) under Rule 15(4) of CCS (CCA) Rules and consultation with the UPSC imposed a penalty of removal from service.
The respondent then appeared before the CAT challenging the punishment awarded to him.
TRIBUNAL’S DECISION: Considering the punishment being very harsh upon the respondent it stated that, “that the punishment imposed upon the respondent is quashed while the findings of facts are affirmed”. Review petition filed by the appellants was dismissed. Thereafter, the Secretary (GOI) after consultation with the with the UPSC passed a fresh order and imposed a penalty of compulsory retirement from the service upon the respondent. This order was also challenged and was set aside.
HIGH COURT’S (KERALA) DECISION: If the respondent reported for duty within six months, he should be reinstated in service, but he would not be entitled to any back wages. The appellants then filed an appeal in the Supreme Court of India.
i) Whether the Tribunal and High Court (Kerala) were justified in passing the said order?
Shri Vikas Singh was the counsel for the appellants. His contentions are as follows:
i) He submitted that while seeking the permission of the Central Government for availing the said scholarship the respondent had stated that he would join University in Canada for research training in plasma physics and the duration of the same was 2 years. He at no point of time indicated that he wanted to enroll himself for the Ph. D. The order which granted him the leave clearly stated that the extraordinary leave was granted for a period of 2 years only and also, that no extension shall be provided. An undertaking with respect to it was also given by the respondent. However, the respondent did not return within the prescribed time and requested for extension. His requests were turned down and 8 notices were sent to him.
ii) After sending notices even then the respondent did not return. Accordingly, the Tribunal in its judgment (6.01.1994) had upheld the findings recorded by the enquiry officer but had quashed the punishment. It was submitted that the Tribunal had earlier affirmed the findings recorded by the enquiry officer by its first order. Therefore, the Tribunal could not take a contrary opinion at the second stage when the order of compulsory retirement was challenged by the respondent.
iii) It was further submitted that, after having considered the facts and circumstances of the case the penalty of compulsory retirement imposed upon the respondent could not be said to be disproportionate.
Shri Raju Ramachandran was the counsel for respondent. His contentions are as follows:
i) The respondent had joined for a Ph. D. degree in the University of Canada and as he had not completed the work required for the degree he was left with no option, but to stay there.
ii) He also submitted that it was the helplessness of the respondent whose keen desire to do research work was well within the limits. And if he obtained that degree it would be of immense value for BARC.
iii) He demanded that penalty of compulsory retirement to be dropped and the respondent be reinstated but without any back wages.
The appeal was allowed. It was held that, “in the facts and circumstances of the case, the punishment of compulsory retirement imposed upon the respondent cannot be held to be disproportionate, much less shockingly disproportionate, and there was absolutely no ground on which the Tribunal or High Court could interfere with the order passed by the appellants.”
i) The jurisdiction exercised by both the Tribunal and the High Court is limited. This implies that while exercising the power of judicial review these authorities cannot set aside the punishment completely or impose a different penalty unless and until they come to the conclusion that:
a) There has been a substantial non-compliance of the rules and procedure.
b) Principles of natural justice have been violated resulting in miscarriage of justice.
ii) The scope of judicial review with respect to disciplinary actions against employees has been discussed in a number of cases. The principle which hence developed is- “only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and in such extreme or rare cases can the court substitute its own view as to the quantum of punishment”.
iii) Article 51A(j), Constitution of India lays down that, it shall be the duty of every citizen to strive towards excellence in all spheres of individual collective activity so that nation constantly rises to higher levels of endeavor and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IV- A of the Constitution has the tendency to negate or destroy the same.
CURRENT STATUS OF THE JUDGEMENT:
This judgement has not been overruled. It has been cited in almost 60 cases to highlight the importance of fundamental duties.
As it has been stated earlier that every right comes with a duty. The significance of duty can be understood with the help of a concept called “dharma” in Hindu law. Dharma indicates as to what a person is bound to do or what he should do. Though the case in hand primarily deals with the scope of judicial review as well as with the powers of subordinate courts and tribunals. But, it also makes a mention of the fundamental duties as well. It is a general notion that fundamental duties are not enforceable in the court of law. This case though not completely but highlights the significance of fundamental duties up to certain extent. Though this area demands more of research work.
 (2003) 7 SCC 133.
Contributed by: Mollshree Pareek (Himachal Pradesh National Law University)