Eligibility of officer on contract exercising authority of competency

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This topic contains 6 replies, has 2 voices, and was last updated by  Jayasankar Nair 3 weeks ago.

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  • #1164

    Sir,
    Request reference of Supreme Court Judgement on disqualification of contractual/temporary officer exercising the power of Competent authority to initiate disciplinary action on regular/permanent employee in Central Government Service.

    Also request clarification whether I can issue notice under Section 80 CPC in my individual capacity under the circumstance that (1) I am confident of incompetency of officer issued charge sheet (2) Officer not willing to provide documentary proof on competency inspite of my request. Specifically under the circumstance that the higher authority also found biased.

    Thanking you.

  • #1174

    As far as I understand if a person is holding the position of competent authority in a lawful manner and if there is no legal defect in his occupying that position, then he should be in a position to exercise the powers of that authority. The source of his recruitment should not come in the way, provided there is no legal defect in his appointment. Temporary only implies that he would not be there for regular duration but in so far as he is lawfully appointed to a position, he should be in a position to exercise the powers attached to that position during whatever tenure he has got. Of course, if there is a specific condition in his temporary / contractual appointment that he would not exercise such-and-such power, then it may be a different situation.

    And, if there is a legal defect in his appointment and in his occupying that position (of competent authority), then you may even file a writ of quo warranto.

    Since you have mentioned about a charge sheet against a central government servant, I don’t know why do you want to issue a notice under Section 80 CPC. A Central Government servant can directly challenge a charge sheet issued to him in the Central Administrative Tribunal (CAT), if there is a legal defect in the charge sheet. There is no need for issuing a notice under Section 80 CPC or, in fact, even for filing a suit under CPC. Such matters are covered under CAT now.     


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, and is author of 3 law books. He is the founder of this law portal. Read more about him by clicking here. List of his articles. List of his Forum Replies. Email: info@tilakmarg.com [Note: Free legal questions should be asked only at this Forum, and NOT at this email address.]

    • #1177

      Sir,
      My heartiest thanks for your very prompt and kind reply. Your clarification cleared by doubts.
      Thanks
      Jayasankar

  • #2025

    Sir,
    The officer who initiated disciplinary action against me is not competent to do so, which I appealed to his higher authority. The higher authority of this officer is also biased and therefore my querry is not responded by either disciplinary authority or his authority.

    In the meanwhile, I understand that a disciplinary action is undergoing against the officer who initiated action against me for his misconduct. Under such circumstance, I have a doubt whether this charge sheeted officer can be permitted to exercise role of disciplinary authority on his others, pending decision on his own case. As far as my general understanding, such permissions are likely to give room for arm-twisting act. Is there any judicial directions on such matter. While, I agree that I can approach judiciary or CAT challenging legal validity/appointment of my disciplinary authority. Still, considering the delay in decision making by judiciary, I wish to exercise all available options.

    Thanking you in advance sir.

  • #2044

    Sir, Please look into my request. I appealed to my higher authority about incompetency of Disciplinary authority and Inquiry officer. My higher authority is not responding and IO planned to proceed with the enquiry. As the litigation is a very time taking and expensive affair, I approved higher authority for financial assistance for litigation. He is not responding to this request also. Confirm correctness of my request for finance assistance. If at all I file a case, can I got this non-operation for financial assistance also to prove my stand.

    Request guidance please.

    Thanks

  • #2057

    You have mentioned that the officer who initiated the disciplinary inquiry against you, is not competent to do so. You have also mentioned that the inquiry officer has planned to proceed with the inquiry and the higher authority is also not doing anything in this regard. In such situation, the only remedy would be to challenge the disciplinary inquiry against you in the Central Administrative Tribunal (CAT) since it has been initiated by incompetent authority, as per your version. You may file an Original Application (OA) in CAT to quash and set aside such inquiry and meanwhile obtain a stay against the inquiry.

    As regards the issue of the officer himself facing departmental action, that is a separate issue between him and the government. Your case will be decided on the merits of your own case, including on the issue of whether the officer who initiated the disciplinary inquiry against you was competent to do so.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, and is author of 3 law books. He is the founder of this law portal. Read more about him by clicking here. List of his articles. List of his Forum Replies. Email: info@tilakmarg.com [Note: Free legal questions should be asked only at this Forum, and NOT at this email address.]

  • #2061

    Ok Sir. Thank you very much.

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