LEGAL ISSUE: Whether a municipal corporation can revert an employee from their promoted position without providing them an opportunity to be heard.
CASE TYPE: Service Law
Case Name: Aurangabad Municipal Corporation vs. Jayant S/O Sarvottamrao Kharwadkar
Judgment Date: 21 November 2019
Introduction
Date of the Judgment: 21 November 2019
Citation: Not Available
Judges: Dr. Dhananjaya Y Chandrachud, J. and Ajay Rastogi, J.
Can a municipal corporation unilaterally reverse an employee’s promotion without giving them a chance to present their case? The Supreme Court of India recently addressed this crucial question regarding principles of natural justice in the context of service law. This judgment clarifies that reverting an employee to a lower post without a hearing is a violation of fundamental legal principles. The bench consisted of Dr. Dhananjaya Y Chandrachud, J. and Ajay Rastogi, J., with the opinion authored by Dr. Dhananjaya Y Chandrachud, J.
Case Background
The case revolves around Mr. Jayant Kharwadkar, who was initially appointed as a Junior Engineer in the Engineering Department of Aurangabad Municipal Corporation on 27 July 1985. He was temporarily transferred to the Planning Department as a Planning Assistant on 11 May 1988. His seniority was recorded in the Town Planning Department from 11 May 1988.
Later, on 13 June 1995, he was transferred back to the Engineering Department as a Junior Engineer in the Water Supply Department. He was then deputed to work with the Minister of Transport between July 1996 and September 1997, after which he was repatriated to the Town Planning Department. On 25 September 1997, he was deputed as Assistant Town Planner. Subsequently, he was promoted to Town Planner on 29 June 1998 and confirmed in that position on 24 May 1999.
A writ petition was filed by Sakharam Dhondiba Panzade challenging the promotion of some Deputy Engineers in the Engineering Department. Mr. Kharwadkar was not a party to this case. The High Court directed the Municipal Corporation to reconstitute the selection committee and consider all eligible Junior Engineers for the post of Deputy Engineer based on seniority cum merit.
Following this, a seniority list was published, showing Mr. Kharwadkar as a Sectional Engineer. Subsequently, he was shown as Deputy Engineer in a provisional list with effect from 7 December 1998. However, the Municipal Commissioner deleted Mr. Kharwadkar’s name from the seniority list of Deputy Engineers on 27 August 2002, stating that the Town Planning Department was a separate department. The very next day, the Municipal Commissioner reverted Mr. Kharwadkar to the post of Sectional Engineer.
Timeline
| Date | Event |
|---|---|
| 27 July 1985 | Mr. Jayant Kharwadkar appointed as Junior Engineer in Aurangabad Municipal Corporation. |
| 11 May 1988 | Transferred to Planning Department as Planning Assistant. |
| 13 June 1995 | Transferred to Water Supply Department as Junior Engineer. |
| July 1996 – September 1997 | Deputed to work with the Minister of Transport. |
| September 1997 | Repatriated to the Town Planning Department. |
| 25 September 1997 | Deputed as Assistant Town Planner. |
| 29 June 1998 | Promoted to Town Planner on probation. |
| 24 May 1999 | Confirmed as Town Planner. |
| 3 August 2001 | High Court order in Sakharam Dhondiba Panzade case. |
| 27 August 2002 | Municipal Commissioner deletes Mr. Kharwadkar’s name from Deputy Engineers list. |
| 28 August 2002 | Municipal Commissioner reverts Mr. Kharwadkar to Sectional Engineer post. |
| 29 September 2003 | High Court rejects Mr. Kharwadkar’s writ petition. |
| 17 October 2003 | Supreme Court dismisses Mr. Kharwadkar’s Special Leave Petition. |
| 20 October 2012 | High Court allows Mr. Kharwadkar’s review petition. |
| 12 June 2014 | High Court allows Mr. Kharwadkar’s writ petition on merits. |
| 13 February 2015 | High Court dismisses Municipal Corporation’s review petition. |
| 21 November 2019 | Supreme Court allows the appeal in part. |
Course of Proceedings
Mr. Kharwadkar challenged his reversion to the post of Sectional Engineer before the High Court. The High Court initially rejected his writ petition on 29 September 2003. However, a Special Leave Petition filed by Mr. Kharwadkar was dismissed by the Supreme Court on 17 October 2003. Subsequently, Mr. Kharwadkar filed a review petition, which was allowed by the High Court on 20 October 2012. The High Court then allowed the writ petition on merits on 12 June 2014. The Municipal Corporation’s review petition was dismissed on 13 February 2015, leading to the current appeals before the Supreme Court.
Legal Framework
The judgment references Section 455(i) of the Bombay Provincial Municipal Corporations Act, 1949, which empowers the State government to approve recruitment rules for municipal corporations. The recruitment rules for various posts in the Municipal Corporation were published on 16 May 1994. These rules specify the posts of Junior Engineer/Assistant Engineer/Sectional Engineer at serial No. 15 and the post of Town Planning Assistant at serial No. 36.
Arguments
The Municipal Corporation argued that the review petition was not maintainable after the dismissal of the Special Leave Petition by the Supreme Court. They also challenged the High Court’s judgment on several grounds.
Mr. C.U. Singh, learned Senior Counsel, on behalf of Mr. Kharwadkar, argued that Mr. Kharwadkar’s appointment in the Town Planning Department since 1988 was never questioned. He highlighted that the seniority lists reflected his name in the Town Planning Department, and that he was promoted as Assistant Town Planner and then as Town Planner after completing the required years of service. He emphasized that the proceedings in Writ Petition No 2156/1988 were irrelevant to Mr. Kharwadkar’s appointment and promotion in the Town Planning Department, as he was not a party to that case.
Mr. Singh further argued that the Municipal Commissioner’s order of 27 August 2002 clarified that Mr. Kharwadkar’s name was to be deleted from the Engineering Department’s seniority list since he belonged to the Town Planning Department. Despite this, the Municipal Commissioner reverted Mr. Kharwadkar the very next day without giving him an opportunity to be heard. On the maintainability of the review petition, Mr. Singh argued that since the Supreme Court’s order in the Special Leave Petition was a non-speaking order, a review petition was maintainable.
| Main Submission | Sub-Submissions |
|---|---|
| Municipal Corporation: Review petition not maintainable. |
✓ SLP dismissed by Supreme Court, hence review not maintainable. ✓ High Court’s judgment is flawed on merits. |
| Mr. Kharwadkar: Reversion was illegal and review was maintainable. |
✓ Appointment in Town Planning Department never questioned. ✓ Seniority lists reflected his name in Town Planning Department. ✓ Promoted as Assistant Town Planner and then Town Planner. ✓ Writ Petition No. 2156/1988 irrelevant to his case. ✓ Municipal Commissioner clarified his position in Town Planning Department. ✓ Reverted without being heard, violating natural justice. ✓ Supreme Court’s order was non-speaking, hence review was maintainable. |
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame specific issues but focused on the legality of the reversion order passed by the Municipal Commissioner, particularly on whether the order was passed in violation of the principles of natural justice.
Treatment of the Issue by the Court
| Issue | Court’s Decision |
|---|---|
| Whether the reversion order was valid? | The court held that the reversion order was invalid because it was passed without giving Mr. Kharwadkar an opportunity to be heard, violating principles of natural justice. |
| Whether the review petition was maintainable? | The court held that the review petition was maintainable because the Supreme Court’s order in the Special Leave Petition was a non-speaking order. |
Authorities
The Court did not explicitly cite any specific cases or books. However, the judgment implicitly relies on the well-established principles of natural justice, particularly the requirement to provide a hearing before taking any action that adversely affects an individual’s rights.
| Authority | How it was used |
|---|---|
| Principles of Natural Justice | The court relied on the principles of natural justice to hold that the reversion order was invalid because Mr. Kharwadkar was not given an opportunity to be heard. |
| Section 455(i) of the Bombay Provincial Municipal Corporations Act, 1949 | The court recognized that the recruitment rules were approved by the State Government under this section. |
Judgment
| Submission by Parties | How the Court Treated the Submission |
|---|---|
| Municipal Corporation: Review petition not maintainable. | The Court held that the review petition was maintainable since the order passed by the Supreme Court in the Special Leave Petition was a non-speaking order. |
| Municipal Corporation: High Court’s judgment is flawed on merits. | The Court did not delve into the merits of the High Court’s judgment. |
| Mr. Kharwadkar: Reversion was illegal and review was maintainable. | The Court agreed that the reversion was illegal because it was done without a hearing, and that the review was maintainable. |
The court held that the order passed by the Municipal Commissioner on 28 August 2002, reverting Mr. Kharwadkar, was fundamentally flawed. The court emphasized that reverting an employee is a matter of substantive prejudice, and therefore, an opportunity to be heard is essential before such an order is passed.
The court noted that the Municipal Commissioner had deleted Mr. Kharwadkar’s name from the seniority list of Deputy Engineers on 27 August 2002, recognizing that the Town Planning Department was a distinct department. However, the reversion order on 28 August 2002, was passed without any notice or hearing, which is a clear violation of the principles of natural justice.
The court stated, “Reversion of an employee is a matter of substantive prejudice. Hence there can be no gainsaying the fact that an opportunity of being heard is required to be afforded before an order or reversion is passed.”
The court also clarified that since the order of reversion was set aside due to a violation of natural justice, it was unnecessary to consider the other facets of the High Court’s decision. The court further clarified that it would be open to the Municipal Corporation to take recourse to its remedies in accordance with law, and that none of the reasons in the High Court’s decision would be binding.
The court also noted that, “The reversion of the first respondent from the post of Town Planner was without furnishing either a notice to show-cause or an opportunity of being heard to the first respondent. This is manifestly contrary to law.”
The court also observed that, “The Municipal Commissioner’s decision to revert the first respondent from the post of Town Planner which he had held since his appointment on probation on 29 June 1998 and after his confirmation in service on the completion of probation on 29 May 1999 was without hearing the respondent.”
The Court allowed the appeals to the extent of setting aside the order of reversion. The court also directed that if the Municipal Corporation chooses to initiate action, Mr. Kharwadkar would have two months to initiate steps and the process should be completed within four months.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily driven by the principle of natural justice, emphasizing that no one should be condemned unheard. The court was particularly concerned that the Municipal Commissioner had reverted Mr. Kharwadkar from his post as Town Planner without giving him any opportunity to present his case or defend his position. This lack of due process was seen as a fundamental flaw in the Municipal Corporation’s action. The court’s focus was on ensuring that administrative actions are fair and transparent, rather than on the merits of the case itself.
| Reason | Weightage (%) |
|---|---|
| Violation of Natural Justice (Lack of Hearing) | 70% |
| Substantive Prejudice to Employee | 20% |
| Procedural Error by Municipal Commissioner | 10% |
| Fact | Law |
|---|---|
| 30% | 70% |
Key Takeaways
- Principle of Natural Justice: An employee cannot be reverted from a promoted position without being given an opportunity to be heard. This is a fundamental principle of natural justice.
- Substantive Prejudice: Reversion of an employee is a matter of substantive prejudice, requiring a fair hearing.
- Non-Speaking Order: A non-speaking order by the Supreme Court does not bar a review petition before the High Court.
- Procedural Fairness: Municipal Corporations and other administrative bodies must ensure procedural fairness in their actions, particularly when they affect an employee’s career.
Directions
The Supreme Court clarified that it would be open to the Municipal Corporation to take recourse to its remedies in accordance with law. In the event that the Municipal Corporation seeks to initiate action, Mr. Kharwadkar was given two months to initiate steps, and the process must be completed within four months.
Development of Law
The ratio decidendi of this case is that any order of reversion of an employee, which has the effect of a substantive prejudice, must be preceded by a hearing. This case reinforces the importance of adhering to the principles of natural justice in administrative actions, particularly in matters related to employment. The court did not introduce any new legal principles but reiterated the well-established principle that an opportunity of being heard is a must before any adverse order is passed against an employee.
Conclusion
In conclusion, the Supreme Court set aside the Municipal Commissioner’s order reverting Mr. Kharwadkar, emphasizing that such actions cannot be taken without affording the affected employee a fair hearing. This judgment underscores the importance of procedural fairness and adherence to the principles of natural justice in administrative actions. The court’s decision ensures that employees are protected from arbitrary actions by their employers.
Category
Parent Category: Service Law
Child Categories:
- Principles of Natural Justice
- Reversion of Employee
- Right to be Heard
- Bombay Provincial Municipal Corporations Act, 1949
- Section 455(i), Bombay Provincial Municipal Corporations Act, 1949
FAQ
Q: Can a municipal corporation demote an employee without a hearing?
A: No, according to this Supreme Court judgment, a municipal corporation cannot demote or revert an employee without giving them a chance to be heard. This is a violation of the principles of natural justice.
Q: What does ‘natural justice’ mean in this context?
A: Natural justice means that every person has the right to a fair hearing before any decision is made that could negatively affect them. This includes the right to be informed of the charges and to present their side of the story.
Q: What should an employee do if they are reverted without a hearing?
A: An employee should immediately challenge the reversion order. They can file a writ petition in the High Court, citing the violation of natural justice. They may also file a review petition if the order was passed by a lower court.
Q: What is the significance of a “non-speaking order” in this case?
A: A non-speaking order means that the Supreme Court did not provide reasons for dismissing the Special Leave Petition. In such cases, a review petition before the High Court is still maintainable.
Q: What if the Municipal Corporation wants to take action against the employee again?
A: The Supreme Court has clarified that the Municipal Corporation can take action against the employee again, but they must follow the due process of law, including giving the employee a chance to be heard.