SC: Govt. is not required to comply with Art. 16 when re-employing retirees

The Hon’ble Supreme Court, on 6th December 2019, in the matter of The State Of Telangana v. Sri Managipet @ Mangipet Sarveshwar Reddy observed that re-employment of retired officers by the State Government in exercise of powers under Article 162 of the Constitution does not warrant compliance of rigour of Article 16 of the Constitution.

The Hon’ble Supreme Court observed that:

Article 310 of the Constitution contemplates that except as expressly provided, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union, holds office at the pleasure of the President. In respect of the State Services, however, he or she holds office at the pleasure of the Governor. (Para 10)

There is no prohibition in any of the service rules that there cannot be any re-employment of a person who was once in a civil service of either the Center or the State. (Para 10)

Various facets of Policing in the State fall within the legislative competence of the State and the re-employment of a retired personnel who was a member of Indian Police Service, falls within the executive power of the State. (Para 11)

Re-employment of an officer after his retirement, by the State Government in exercise of powers under Article 162 of the Constitution does not warrant compliance of rigour of Article 16 of the Constitution. Such executive powers of the State do not contravene any other statutory provisions; therefore, re-employment in this regard is supplementing the statutory rules and regulations and not supplanting them. (This inference has been drawn on the basis of Para 14)

Acts undertaken by an officer who assumed official authority in public interest and not for his own benefit will be taken to be valid. (This inference has been drawn on the basis of Para 15)

Where an officer acts under the authority conferred by the State and such authorisation is issued when he was performing his duties in public interest and not for his own benefit, then such authorisation is valid and binding as if it was an act of an officer de jure. (This inference has been drawn on the basis of Para 21)

While deciding a petition for quashing of proceedings under Section 482 of the Cr.P.C., the High Court cannot comment upon the nature of employment of the investigation officer as such a question does not fall within the jurisdiction of the High Court whilst deciding the aforementioned petition. (This inference has been drawn on the basis of Para 22)

In Lalita Kumari v. Government of Uttar Pradesh & Ors. [(2014) 2 SCC 1] it has not been held that a preliminary inquiry is a must in all cases. A preliminary enquiry may be conducted pertaining to Matrimonial disputes/family disputes, Commercial offences, Medical negligence cases, Corruption cases etc. The judgment in Lalita Kumari v. Government of Uttar Pradesh & Ors. [(2014) 2 SCC 1] does not state that proceedings cannot be initiated against an accused without conducting a preliminary inquiry. (This inference has been drawn on the basis of Para 30)

The scope and ambit of a preliminary inquiry being necessary before lodging an FIR would depend upon the facts of each case. There is no set format or manner in which a preliminary inquiry is to be conducted. The objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. (Para 32)

The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. (Para 33)

Where relevant information is available with the informant in respect of prima facie allegations disclosing a cognizable offence, and the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed. (This inference has been drawn on the basis of Para 33)

Any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient to register the FIR. (This inference has been drawn on the basis of Para 34)

Copy of judgement: Judgement_06th-Dec-2019

-Adv. Tushar Kaushik

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