Being in the service of the government, be at the Centre or the State level, puts a lot of restrictions on you. There are multifarious rules of conduct to be followed and often, unknowingly, some employees end up barking the wrong tree. The fact that government litigation makes up nearly half of all pending litigation in the Indian judicial system speaks volumes about the possibility of being caught in one yourself if you are also part of the government machinery.
Most of the service matters filed in the courts include:
• Matters arising from appointment, examination, and joining
• Matters related to promotion, salary & arrears
• Litigation to regularize Ad hoc employees and temporary/ probationary employment
• Matters emanating from transfer, suspension or termination
• Matters to challenge imprudent and unjustified disciplinary actions
The reasons for high instance of service litigation include:
• Irresponsible and ‘taken for granted’ attitude of stakeholders
• Biased and prejudiced behaviour of employees
• Poor management and zero answerability
• No grievance redressal mechanism of the Government Department
• Personal vendetta
• Issues arising due to ego issues and whims of seniors
Statutes pertaining to service litigation:
• The Constitution of India
• Central Service Rules
• Union, & State legislations & regulations
• Notifications/ Statutes & other by-laws
What is to be done in service law disputes?
• First of all a complaint must be filed by the aggrieved employee with the competent authority
• After the authority has adjudicated the matter, the employee must file an appeal before the relevant appellate authority
When do we recommend a writ petition?
The employee can take recourse to a writ petition at any time in case the adjudicating authority hearing the matter or the appellate authority hearing the appeal or any other investigating authority is:
• violating the service laws or rules, or principles of natural justice
• causing or may cause an unjustifiable or irreparable loss
As per Article 226 of the Constitution, any aggrieved party can approach the High Court at any stage for enforcement of justice by filing a writ petition. It is the discretion of the Hon’ble High Court to admit a petition so filed and issue the requisite directions. Such writ petition could be in the nature of habeas corpus, quo warranto, mandamus, certiorari and prohibition. Such writ petition is maintainable against governments at the Centre or State and other government authorities too. Articles 309 and 311 of the Constitution specify the framework for making rules which define conduct and misconduct within service matters and the procedure to be followed while conducting departmental inquiries against misconduct and also to impose punishments in proportion to the misconduct by the employee.
The Hon’ble Supreme Court of India being the highest seat of justice in the country has the powers to issue writs as per Article 32 of the Constitution to enforce Fundamental Rights of the aggrieved party. The Apex court may also issue writs under Article 139 for enforcement of rights other than Fundamental Rights. Articles 14 and 15 are most often invoked in service matters. As per the law, the facts and circumstances of the case, the reply of the other party, most of the times single bench of the High Court adjudicates the matter. After this, either party may file Letters Patent Appeal before a Division bench of the High Court if not content with the decision of the single bench. After the Division bench, the authority next in line is the Hon’ble Supreme Court which can be approached by filing a Special Leave Petition. Any delay and lapses on the part of the petitioner in a writ petition before the High Court or the Supreme Court are dealt with seriously. Often, if a representation is not filed, the party may be asked to withdraw the writ petition. The draft of writ petition must castigate all those laws/regulations/by-laws/notifications by which the petitioner is aggrieved.
There is a time constraint within which a writ petition must be filed post the adjudication of the representation. The draft of writ petition must be concise, comprehensive and mention all the requisite facts, a summary of the events and all the laws/regulations/by-laws/notifications castigated by the petitioner. Our team of service law advocates has successfully represented many an aggrieved servicemen and women over the years. We have handled cases against both State and Union Governments. We do not stop short of challenging even the most supreme of authorities when we strive for justice for our clients.