REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    2958         OF 2011 (Arising out of SLP (C) NO. 1100 OF 2009)

Chairman-Cum-M.D.,                 Coal India Ltd., & Ors.                                                        …Appellants

Versus

Ananta Saha & Ors.                     …Respondents

J U D G M E N T   

Dr. B. S. CHAUHAN, J.

1. Leave granted.   

2. This appeal has been preferred against the judgment and order  

dated 22.7.2008 passed in M.A.T. No. 2852 of 2007 by the Calcutta  

High Court dismissing the appeal of the present appellants against the  

judgment  and  order  of  the  learned  single  Judge  dated  16.8.2007,

passed in Writ Petition No. 22658(W) of 2005, by which the learned  

single  Judge  had  quashed  the  punishment  order  of  dismissal  from  

service as well as the  disciplinary proceeding against respondent no.1  

(hereinafter  called  the  delinquent),  giving  liberty  to  the  present  

appellants  to  initiate  the  proceedings  afresh,  if  the  disciplinary  

authority so desired.   

3. Facts  and circumstances  giving rise  to  this  case  are  that  the  

delinquent  has been employed as a Medical  Officer (E-2 grade) in  

Coal India Limited (hereinafter called as ‘CIL’). On 29.6.1991, when  

the delinquent was posted at Central  Hospital,  Asansol,  established  

under the control of Eastern Coalfields Limited (hereinafter called as  

ECL),  he abused and made an attempt to physically assault his senior  

officer Dr. P.K. Roy, the then Chief Medical Officer, unprovoked. In  

this  process,  other  officers  who  tried  to  intervene  stood  assaulted.  

Disciplinary  proceedings  were  initiated  against  the  delinquent  by  

issuing  a chargesheet  dated 26.7.1991. After the conclusion of the  

proceedings, the inquiry officer submitted the report holding that the  

charge  stood  proved  against  him.    After  considering  the  inquiry  

report,  the delinquent was dismissed from service, vide order dated  

17.6.1993,  by  the  Chief  Managing  Director  (hereinafter  called  as  

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CMD)  of  the  ECL,  a  subsidiary  of  the  CIL.   The  said  order  of  

dismissal was challenged by the delinquent by filing  Writ Petition CR  

No. 11177(W) of 1993 and the same stood allowed by the learned  

single Judge vide judgment and order dated 22.2.2001 on the ground  

that the order of dismissal had been passed in contravention of the  

Statutory Rules.  The competent authority under the disciplinary rules  

was the CMD, CIL, who had not passed the order of punishment.  All  

other issues raised by the delinquent were left open. The appellants-

employers  were  given  liberty  to  initiate  the  proceedings  de-novo,  

giving adequate opportunity to the delinquent to defend himself.   

4. Being aggrieved, the appellants challenged the said judgment  

and order dated 22.2.2001 by filing MA No. 1081 of 2001. The said  

appeal  was  dismissed  vide  judgment  and  order  dated  8.8.2001  

observing that CMD, CIL  was the only competent authority to award  

a  major  punishment like dismissal.  The court further held that the  

delinquent would be treated in the light of the judgment of this court  

in Managing Director, ECIL, Hyderabad etc. etc. v. B. Karunakar  

etc. etc.,  AIR 1994 SC 1074.  However, the direction for  holding the  

disciplinary proceedings de-novo was not altered.    

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5. In  view  of  the  Division  Bench  judgment  and  order  dated  

8.8.2001, the delinquent was reinstated. The disciplinary proceedings  

were  initiated  and  a  fresh  suspension  order  was  passed.   On  

conclusion  of  the  proceedings  ex-parte,  as  the  delinquent  did  not  

participate in the proceedings, the inquiry officer found the charges  

proved against the delinquent vide report dated 18.9.2003. A copy of  

the inquiry report along with a second show-cause notice was sent to  

the  delinquent  by  registered  post  on  26.9.2003,  giving  him  an  

opportunity  to  make  a  representation  on  the  same.   However,  the  

delinquent  did  not  avail  of  the  opportunity  to  file  the  objections  

thereupon. After considering the inquiry report, the CMD, CIL, the  

disciplinary authority, passed the punishment order of “dismissal from  

service” of the delinquent vide order dated 24.2.2004.  A copy of the  

order  of  dismissal  was  served  upon  the  delinquent  immediately  

thereafter.   

6. The delinquent filed the appeal prescribed under the Statutory  

Rules on 27.5.2005, i.e., after the expiry of more than one year and  

three  months  from  the  date  of  receipt  of  the  order  of  dismissal.  

Without  waiting  for  the  result  or  outcome  of  the  appeal  pending  

before the Board of Directors, CIL, the delinquent filed Writ Petition  

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No. 22658(W) of 2005 challenging the said order of punishment.  The  

said writ petition was allowed by the learned single Judge vide order  

dated 16.8.2007 on the ground that the disciplinary authority did not  

ensure compliance with the orders of the High Court dated 8.8.2001,  

which   stood  confirmed  by  the  Division  Bench   and  also  on  the  

ground  that  the  fresh  inquiry  was  not  initiated  by  the  competent  

authority  as  it  was  initiated  by  the  Officer  on  Special  Duty  

(hereinafter called as OSD) and had been merely seen by the CMD,  

ECL. The proceedings could have been initiated only by the CMD,  

CIL,  thus,  entire  proceedings  stood  vitiated.  The  impugned  order  

dated 24.2.2004, imposing the order of punishment of dismissal from  

the service, was quashed.  However, the appellants were given liberty  

to initiate fresh inquiry in accordance with law and to conclude the  

same within a stipulated period.   

7. Being aggrieved, the appellants preferred M.A.T. No. 2852 of  

2007,  however,  the  Division  Bench  dismissed  the  said  appeal  

observing that the  disciplinary proceedings had been initiated by an  

authority  not competent to initiate such proceedings and no person  

other than the CMD, CIL could initiate the same.   In fact, the inquiry  

had been initiated by the OSD, of the ECL and CMD, ECL also did  

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not even approve it, rather he put his signature without making any  

observation  whatsoever.   The  CMD,  ECL was  not  the  Competent  

Authority.  The  court  had  also  made  an  observation  that  the  

disciplinary  authority  had  been  biased  and  prejudiced  towards  the  

delinquent  and proceedings  had been  initiated  with  pre-determined  

mind to punish him.  Hence, this appeal.  

8. Shri K.K. Bandopadhyay, learned senior counsel appearing for  

the appellants, has submitted that as per the statutory rules, namely,  

Coal India Executives’ Conduct Discipline and Appeal Rules, 1978  

(hereinafter called `the Rules 1978’) as the delinquent was an officer  

in  E-2  Grade,  the  CMD,  ECL  was  competent  to  initiate  the  

proceedings.  The Schedule framed under Rule 27 of the said Rules  

1978 specifically provided for it.  The CMD, CIL was competent to  

impose any major penalty and against the order of punishment, appeal  

is provided to the Board of Directors, CIL. In view of the provisions  

of Rules 27 and 28 of the Rules 1978, proceedings could be initiated  

even by the CMD, ECL and after  conclusion of the inquiry, if the  

facts warrant imposition of major penalty, the matter could be referred  

to the CMD, CIL  for the purpose of awarding the punishment, as he  

was the only competent authority to award major punishments. During  

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the pendency of the appeal before the Board of Directors, CIL, writ  

petition  could  not  have  been  entertained  by  the  High  Court,  

particularly, when such a fact had been disclosed by the delinquent in  

his  writ  petition.  As  the  earlier  disciplinary  proceedings  had  been  

quashed and the appellants had been given liberty to proceed de-novo  

against  the  delinquent,  there  was no occasion for  the appellants  to  

issue a fresh chargesheet.   The chargesheet had been issued by the  

CMD, ECL, but the High Court has wrongly construed it to have been  

issued by OSD of the company. The High Court failed to appreciate  

that the chargesheet  had been duly approved by the CMD, ECL. The  

High Court ought to have refused to entertain the writ petition on the  

grounds  that  the  delinquent  had  also  been  found  guilty  of  serious  

misconduct  earlier;  did  not  participate  in  the  inquiry  and  it  was  

concluded  ex-parte.   More  so,  the  delinquent  did  not  file  

reply/comments  to the second show-cause in spite of having received  

the  same.   The  High  Court  erred  in  recording  a  finding  that  

proceedings had been initiated in this case with pre-determined mind  

just to punish the delinquent. Thus, the appeal deserves to be allowed.  

9. Per contra, the delinquent-in-person has opposed the appeal on  

the  grounds  that  the  rules  in  force  at  the  time  of  his  initial  

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appointments, provided that the proceedings could be initiated only by  

the  CMD,  CIL  not  by  the  CMD  of  the  subsidiary  company.   A  

subsequent change/amendment in law would not be applicable so far  

as the delinquent was concerned.  He did not participate in the inquiry  

on all the dates and did not submit the reply to the second show-cause  

as he had not been informed in accordance with law and, in such a  

fact-situation, there was no obligation on his part either to participate  

in the inquiry or to submit a reply to the second show cause.  Once,  in  

the first round of litigation, the High Court had given liberty to the  

disciplinary authority to proceed de-novo, a fresh chargesheet ought to  

have been issued to him by the disciplinary authority.  In the instant  

case,  proceedings  had  been  initiated  only  by  the  OSD  of  the  

Company. The CMD, ECL was not the Competent Authority, even  

otherwise,  he  had  merely  signed  the  order  without  making  any  

observation whatsoever.   The appellants  had a grudge against  him,  

hence proceedings were initiated because of malice. The appeal lacks  

merit and is liable to be dismissed.  

10. We  have  considered  the  rival  submissions  made  by  learned  

Senior counsel for the appellants and the  delinquent-in-person.

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11. The  chargesheet  dated  26.7.1991  reveals  a  very  serious  

misconduct  by  the  delinquent,  as  on  29.6.1991  the  delinquent  

approached Dr. P.K. Roy, CMO, Central Hospital  Kalla, and asked  

why he had marked him absent for 3 days in June, 1991, though the  

delinquent  had  applied  for  compensatory  leave  through  proper  

channel and then used abusive language and threatened the CMO to  

the extent of saying that he (the delinquent) would kill the CMO.  He  

took his shoes in hand and rushed towards the CMO, to hit him but  

other officers present there at that time caught hold of the delinquent  

with  great  difficulty  and prevented  him from assaulting the  CMO.  

Even at that stage, he made all attempts to get rid of them. In this  

process other employees were beaten by the delinquent.  

The  chargesheet  further  reveals  that  the  delinquent  had  also  

been  found guilty  of  serious  misconduct  in  respect  of  chargesheet  

dated  18.4.1989.  However,  the  management  was  watching  his  

behaviour  and  during  this  time,  the  delinquent  committed  the  

misconduct again on 29.6.1991.  

12. The submission made by the delinquent that at the time of his  

initial  appointment,  the  CMD, CIL was the  competent  authority  to  

initiate the disciplinary proceedings and if the rules have subsequently  

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been  amended,  that  would  not  be  applicable  in  his  case  as  the  

amendment made unilaterally cannot govern the service conditions of  

the  employees  appointed prior  to  the  date  of  amendment,  and that  

such amendment would not apply retrospectively, is preposterous.  

13. A Constitution Bench of this Court in Roshan Lal Tandon v.  

Union of India & Anr., AIR 1967 SC 1889, examined a similar issue  

and observed as under:–

“........The  legal  position  of  a  Government   servant is more one of status than of contract. The   Hall-mark of  status  is  the attachment  to a  legal   relationship  of  rights  and duties  imposed by the   public  law  and  not  by  mere  agreement  of  the   parties. The emolument of the government servant   and his terms of service are governed by Statute or  statutory Rules which may be unilaterally altered  by  the  Government  without  the  consent  of  the  employee.”

14. In State of Mysore v. Krishna Murthy & Ors., AIR 1973 SC  

1146; Raj Kumar v.  Union of India & Ors., AIR 1975 SC 1116;  

and  Ex-Capt. K.C. Arora & Anr.  v.  State  of  Haryana & Ors.,  

(1984) 3 SCC 281, this  Court observed that it was well-established  

that Rules made under the proviso to Article 309 of the Constitution  

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of  India,  being  legislative  in  nature  and  character,  could  be  given  

effect to retrospectively.

15. A Constitution Bench of this Court in State of Gujarat & Anr.  

v. Raman Lal Keshav Lal Soni & Ors., AIR 1984 SC 161, observed  

as under:–

“The legislature  is  undoubtedly  competent   to legislate with retrospective effect to take away   or impair any vested right acquired under existing  laws but since the laws are made under a written  Constitution, and have to conform to the do’s &  dont’s of the Constitution, neither prospective nor  retrospective  laws  can  be  made  so  as  to   contravene  fundamental  rights.  The  law  must   satisfy the requirements of the Constitution today  taking into account the accrued or acquired rights   of the parties today.”

16. In  K. Nagaraj & Ors. v. State of Andhra Pradesh & Anr.  

etc., AIR  1985  SC  551, this  Court  upheld  the  amendment  in  the  

Andhra  Pradesh  Public  Employees  (Regulation  of  Conditions  of  

Service) Ordinance, 1983 by which the age of retirement was reduced  

from 58 to 55 years holding it was neither arbitrary nor irrational. The  

court held that as it would apply in future to the existing employees  

and does not take away the rights of the persons who have already  

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retired, the amendment was not retrospective and those persons who  

were already in service and were expecting to retire at the age of 58  

years and would now be required to retire at the age of 55, cannot  

claim that  the  Rules  have  been  amended  with  retrospective  effect  

taking away their accrued rights.

(See also :  State of Jammu & Kashmir v. Shiv Ram Sharma &  Ors., AIR 1999 SC 2012; and State of U.P. & Ors. v. Hirendra Pal  Singh etc. JT (2010) 13 SC 610).

17. Similarly,  in  State  of  Karnataka  &  Anr.  v.  Mangalore  

University  Non-Teaching  Employees  Association  &  Ors.,  AIR  

2002  SC  1223, this  Court  held  that  conditions  of  service  can  be  

altered unilaterally  by the employer  but  it  should be in conformity  

with legal and constitutional provisions.

18. This Court in State of Tamil Nadu v.  M/s. Hind Stone etc.  

etc.,   AIR 1981 SC 711;  V. Karnal Durai v.  District Collector,  

Tuticorin & Anr., (1999) 1 SCC 475;  Union of India & Ors.  v.  

Indian Charge Chrome & Anr., (1999) 7 SCC 314; and  Howrah  

Municipal Corporation & Ors. v.  Ganges Rope Company Ltd. &  

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Ors., (2004) 1 SCC 663, has clearly held that the law which is to be  

applied in a case is the law prevailing on the date of decision making.  

Thus,  in view of the above, submissions made by the delinquent  

are not worth consideration.    

19. So far as the competence to initiate the disciplinary proceedings  

is concerned, the Rules 1978 provide  complete guidance and Rules  

27 and 28 thereof, if read together, cumulatively provide that major  

penalties,  i.e.,  compulsory  retirement,  removal  or  dismissal  from  

service can be made only by CMD, CIL. Rule 28.3 clearly stipulates  

that  the disciplinary proceedings can be initiated by the authorities  

shown in the Schedule  framed under  Rule 27.  However,  in a case  

where major penalty is to be imposed, the matter be referred to the  

CMD, CIL. Therefore, in order to find out as to whether any officer  

other than the CMD, CIL, could initiate the disciplinary proceedings  

and issue the chargesheet, we have to examine the Schedule framed  

under Rule 27.  The relevant part thereof reads as under:

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SCHEDULE UNDER RULE 27.0

Sl.  No.

Grade of Employee Disciplinary  Authority

Penalties  which it may  impose

Appellate  Authority

1. 2. 3. 4. 5. 1. ………………….. 2. (a) Officers in Grade

E-1 to M-3 posted in  CIL  or  any  of  the  Subsidiary  Companies

Chairman- cum  Managing  Director,  Coal  India  Ltd.

All penalties Board  of  Directors  Coal  India  Ltd.

(b) ……………….. (c) ………………..

3. (a)  Officers  in  grade  E-1 to M-3 posted in  Subsidiary  Companies

CMD  of  the  concerned  Subsidiary  Company

All  penalties  except  those  under  Rule  27.1(iii)(b) to  27.1(iii)(d)

Chairman- cum  Managing  Director, CIL

(b) ………….. (c) ……………  

The  jurisdiction  of  the  Disciplinary  Authority  shall  be  determined  with  reference  to  the  Company/Unit  where  the  alleged  misconduct  was conducted.

20. This Court while interpreting the provisions of Article 311(1) of  

the  Constitution  of  India,  has  consistently  held  that  as  per  the  

requirement of the said provisions, a person holding a civil post under  

the State cannot be dismissed or removed from service by an authority  

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subordinate  to  that  by  which  he  was  appointed.   “However,  that  

Article does not in terms require that the authority empowered under  

the provision to dismiss or remove an official, should itself initiate or  

conduct enquiry proceeding”.  

(See: Sampuran Singh v. State of Punjab, AIR 1982 SC 1407; and  

State of U.P. & Anr. v. Chandrapal Singh & Anr., (2003) 4 SCC  

670)

  21. Admittedly, the delinquent has been an officer in E-2 Grade and  

has been posted in Subsidiary Company, i.e. ECL.  Therefore, there is  

no doubt that disciplinary proceedings could  be initiated by the CMD,  

CIL  or by the CMD of the concerned Subsidiary Company, i.e., ECL.  

As the delinquent was working in the Subsidiary Company, the High  

Court erred in holding that in such an eventuality the CMD of the  

concerned  Subsidiary  Company  was  not  competent  to  initiate  the  

proceedings.

22. Similarly,  we  find  no  force  in  the  submission  made  by  the  

delinquent that he did not participate in the disciplinary proceedings  

and did not make any comment on receiving the inquiry report along  

with the second show cause notice as the notices had not been served  

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upon him in accordance with law.  The second show cause notice and  

the copy of the inquiry report had been sent to him under registered  

post.   Therefore,  there  is  a presumption in law, particularly,  under  

Section  27  of  the  General  Clauses  Act,  1897   and  Section  114  

Illustration  (f)  of  the  Evidence  Act,  1872  that  the  addressee  has  

received  the  materials  sent  by  post.  (vide:  Greater  Mohali  Area  

Development Authority & Ors. v. Manju Jain & Ors., AIR 2010  

SC 3817).

23. In the instant case, proceedings were held ex-parte against the  

delinquent as he failed to appear in spite of notice and such a course  

of  the  inquiry  officer  was  justified  (See:  State  of  U.P.  v.  Saroj  

Kumar Sinha, AIR 2010 SC 3131).   There is no averment by the  

delinquent that he did  not receive the said notice and the copy of the  

inquiry report.  The plea taken by the delinquent  shows that he has  

adopted  a belligerent attitude and kept the litigation alive for more  

than two decades merely on technical grounds.  The delinquent waited  

till  the  conclusion  of  the  purported  fresh  enquiry  initiated  on  

17.1.2002,  even though he could have challenged the same having  

been initiated by a person not competent to initiate the proceedings  

and being in contravention of the orders passed by the High Court  

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earlier.  In such a fact-situation, the High Court ought to have refused  

to entertain his writ petition.  More so, the writ petition could not have  

been proceeded  with and heard on merit when the statutory appeal  

was pending before the Board of Directors, CIL. (See: Transport and  

Dock  Workers  Union  &  Ors.  v.  Mumbai  Port  Trust  &  Anr.,  

(2011) 2 SCC 575).  

Unfortunately, both the parties proceeded with the case without  

any  sense  of  responsibility,  as  subsequent  to  disposal  of  the  writ  

petition and appeal by the High Court, the statutory appeal filed by the  

delinquent    after  15  months  of  imposition  of  punishment  was  

entertained, though the limitation prescribed under the Rules 1978 is  

only 30 days and appeal has been dismissed on merit without dealing  

with  the  issue  of  limitation.   It  clearly  shows  that  both  sides  

considered the litigation as a luxury and that the appellants have been  

wasting public time and money without taking the matter seriously.

24. The Statutory rules clearly stipulate that the enquiry could be  

initiated either by the CMD, CIL or by the CMD of the Subsidiary  

Company.  In the first round of litigation, the learned Single Judge of  

the  High  Court  vide  judgment  and  order  dated  22.2.2001  after  

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quashing  the  orders  impugned  therein,  had  given  liberty  to  the  

appellants  to  start  the  proceedings  de-novo  giving  adequate  

opportunity to the delinquent. The Division Bench vide judgment and  

order  dated  8.8.2001  dismissed  the  appeal  filed  by  the  present  

appellants.   Therefore,  the  question  does  arise  as  to  what  is  the  

meaning of de-novo enquiry.

25. There can be no quarrel with the settled legal proposition that  

the disciplinary proceedings commence only when a chargesheet  is  

issued to the delinquent employee. (Vide: Union of India etc. etc. v.  

K.V. Jankiraman etc. etc.,  AIR 1991 SC 2010;  and UCO Bank &  

Anr. v. Rajinder Lal Capoor, (2007) 6 SCC 694).

26. The High Court had given liberty to the appellants to hold de-

novo enquiry,  meaning  thereby  that  the  entire  earlier  proceedings  

including the chargesheet issued earlier stood quashed. In such a fact-

situation, it was not permissible for the appellants to proceed on the  

basis of the chargesheet issued earlier. In view thereof, the question of  

initiating a fresh enquiry without giving a fresh chargesheet could not  

arise.   

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27. The proceedings were purported to have been revived by the  

CMD, ECL and the said order dated 17.1.2002 reads as under:

“In the matter of C.R. No.11177/W of 1993, Dr. Ananta  Saha Vs. ECL & Ors., Hon’ble High Court, Calcutta has   passed  an  order  upon  the  appellant  to  start  enquiry   proceedings, de-novo, giving adequate opportunity to the  petitioner  and in  the  light  of  the  order  passed  by  the   Hon’ble High Court Calcutta on 8.8.2001, it will depend   on  a  fresh  order  to  be  passed  by  the  Disciplinary   Authority/CMD, ECL.

In the above circumstances, it is proposed that an   Inquiring  Authority  and  a  Presenting  Officer  may  be   appointed to conduct the departmental enquiry in terms   of  the  order  dated  8.8.2001  of  Division  Bench  of   Calcutta  High  Court  for  a  fresh  enquiry  into  the  chargesheet  No.ECL-5(D)/113/1070/320  dated  26.7.1991  issued  to  Dr.  Ananta  Saha,  M,O.  Kalla   Hospital,  for  this  purpose  the  following  names  are  furnished.

1. Dr. R.N. Kobat, CMO, Sanctoria Hospital – Inquiring  Authority

2. Sri M.N. Chatterjee, S.O., Admn. Dept. – Presenting   Officer

Put up for kind approval.

    Sd/-      CMD OSD(PA  &  PR)Sd/-

Sd/-          17.8.2002”   

28. The aforesaid order reveals that the OSD had prepared the note  

which has merely been signed by the CMD, ECL. The proposal has  

been  signed  by  the  CMD,  ECL  in  a  routine  manner  and  there  is  

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nothing on record to show that he had put his signature after applying  

his mind.  Therefore, it  cannot be held in strict  legal sense that  the  

proceedings  had  been  properly  revived  even  from  the  stage  

subsequent to the issuance of the charge sheet. The law requires that  

the disciplinary authority should pass some positive order taking into  

consideration the material on record.  

29. This Court has repeatedly held that an order of dismissal from  

service passed against a delinquent employee after holding him guilty  

of  misconduct  may  be  an  administrative  order,  nevertheless  

proceedings  held against  such a  public  servant  under  the  Statutory  

Rules to determine whether he is guilty of the charges framed against  

him are in the nature of quasi-judicial proceedings.  The authority has  

to give some reason, which may be very brief,  for initiation of the  

inquiry and conclusion thereof. It has to  pass a speaking order and  

cannot be an ipse dixit either of the inquiry officer or the authority.  

(Vide  Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC  

395; Union of India v. H.C. Goel, AIR 1964 SC 364; Anil Kumar v.  

Presiding Officer & Ors., AIR 1985 SC 1121; and Union of India &  

Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541).

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Thus,  the  above  referred  to  order  could  not  be  sufficient  to  

initiate any disciplinary proceedings.  

30. It is a settled legal proposition that if initial action  

is  not  in  consonance  with  law,  subsequent  proceedings  would  not  

sanctify the same.  In such a fact-situation, the legal maxim “sublato  

fundamento  cadit  opus”  is  applicable,  meaning  thereby,  in  case  a  

foundation is removed, the superstructure falls.  

31. In Badrinath v.  Govt.  of  Tamil  Nadu & Ors.,  

AIR 2000  SC 3243,  this  Court  observed  that  once  the  basis  of  a  

proceeding is gone, all consequential acts, actions, orders would fall  

to the ground automatically and this principle of consequential order  

which  is  applicable  to  judicial  and  quasi-judicial  proceedings  is  

equally applicable to administrative orders.  

(See  also  State  of  Kerala v.   Puthenkavu N.S.S.  Karayogam &  

Anr., (2001) 10 SCC 191; and Kalabharati Advertising v. Hemant  

Vimalnath Narichania & Ors. AIR 2010 SC 3745 ).   

32. As in the instant case,  there had been no proper initiation of  

disciplinary  proceedings after  the  first  round of  litigation,  all  other  

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consequential  proceedings stood vitiated and on that count no fault  

can  be  found with  the  impugned judgment  and order  of  the  High  

Court.

33. In respect of the allegation of bias/prejudice/malafide, ground  

no.9 has been taken by the delinquent in his writ petition before the  

High Court, which reads as under:-

“For that the charge sheet was recommended with   pre-determination   of  inflicting  punishment  of   major penalty for which it can be proved by the  remarks  of  the  authority  concerned  on  the  situation report dated 29.6.1991 and as such, the   sanctity and integrity of the proceedings are lost.”

The  delinquent  could  not  point  out  any  material  on  record  to  

substantiate the said averment.

34. The issue of  "malus animus" was considered by this Court in  

Tara Chand Khatri  v. Municipal  Corporation of Delhi & Ors.,  

AIR  1977  SC  567, wherein  it  was  held  that  the  Court  would  be  

justified in refusing to carry on an investigation into the allegation of  

mala fides, if necessary particulars of the charge making out a prima  

facie  case  are  not  given  in  the  writ  petition  and  the  burden  of  

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establishing mala fides lies very heavily on the person who alleges it  

and that there must be sufficient material to establish malus animus.  

35. Similarly, in  E.P. Royappa v. State of Tamil Nadu & Anr.,  

AIR 1974 SC 555, this Court observed:

“Secondly,  we  must  not  also  over-look  that  the   burden of establishing mala fides is very heavy on   the  person  who  alleges  it.....  The  Court  would,   therefore, be slow to draw dubious inferences from  incomplete  facts  placed  before  it  by  a  party,   particularly when the imputations are grave and  they  are  made  against  the  holder  of  an  office   which  has  a  high  responsibility  in  the   administration. Such is the judicial perspective in   evaluating  charges  of  unworthy  conduct  against   ministers  and  other,  not  because  of  any  special   status....  but  because  otherwise,  functioning   effectively  would  become  difficult  in  a   democracy.”

36. In  M.  Sankaranarayanan,  IAS  v.  State  of  Karnataka  &  

Ors., AIR 1993 SC 763, this Court observed that the Court may "draw  

a  reasonable  inference  of  mala  fide from  the  facts  pleaded  and  

established. But such inference must be based on factual matrix and  

such factual matrix cannot remain in the realm of insinuation, surmise  

or conjecture.”

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37. There  has  to  be  a  very  strong  and  convincing  evidence  to  

establish  the  allegations  of  mala  fides specifically  alleged  in  the  

petition, as the same cannot merely be presumed. The presumption is  

in  favour  of  the  bona  fides of  the  order  unless  contradicted  by  

acceptable material. (Vide:  M/s. Sukhwinder Pal Bipan Kumar &  

Ors.  v.  State  of  Punjab  &  Ors.,  AIR  1982  SC  65; Shivajirao  

Nilangekar Patil v. Dr. Mahesh Madhav Gosavi & Ors., AIR 1987  

SC 294;  and Samant & Anr.  v.  Bombay Stock Exchange & Ors.,  

(2001) 5 SCC 323).

38. In  State of Punjab v. V.K. Khanna & Ors.,  (2001) 2 SCC  

330, this  Court examined the issue of bias and mala fide and observed  

as under:–  

"Whereas fairness is synonymous with   reasonableness-  bias  stands  included  within  the   attributes  and  broader  purview  of  the  word   'malice' which in common acceptation means and  implies 'spite' or 'ill will'. One redeeming feature  in the matter of attributing bias or malice and is   now well settled that mere general statements will   not be sufficient for the purposes of indication of   ill will. There must be  cogent evidence available  on record to come to the conclusion as to whether  in fact,  there was existing a bias or a mala fide   move  which  results  in  the  miscarriage  of   justice....... In almost all legal inquiries, 'intention   as distinguished from motive is the all-important   

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factor'  and in common parlance a malicious act   stands equated with an intentional act without just   cause or excuse."                        (Emphasis added)

39. In  Jasvinder Singh & Ors. v. State of J & K & Ors., (2003)  

2 SCC 132, this Court held that the burden of proving mala fides lies  

very heavily on the person who alleges it. A mere allegation is not  

enough.  The  party  making  such  allegations  is  under  the  legal  

obligation to place specific materials before the Court to substantiate  

the said allegations.

40. We could not find any material on record on the basis of which  

the High Court could be justified in recording a finding of fact that  

disciplinary proceedings had been initiated against the delinquent with  

pre-determined  mind  only  to  punish  him.  In  view of  the  fact  that  

inquiry  officers  have  consistently  found  the  delinquent  guilty  of  

committing  a  serious  misconduct,  such  an  observation  was  totally  

unwarranted, particularly in view of the fact that there is nothing on  

record to substantiate such an averment made by the delinquent.   

41. Even in criminal law a complaint cannot be “thrown over board  

on  some  unsubstantiated  plea  of  malafides”.  That  “a  criminal  

prosecution,  if  otherwise,  justifiable  and  based  upon  adequate  

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evidence does not become vitiated on account of malafides or political  

vendetta  of  the  first  informant  or  the  complainant.”  (See  Sheo  

Nandan Paswan v. State of Bihar & Ors., AIR 1987 SC 877; and  

State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992 SC  

604).    

42. Therefore,  the  finding  of  bias  i.e.  predetermination  of  the  

disciplinary authority to punish the delinquent is set aside holding that  

it is totally perverse being based on no evidence.  

43. In the facts  and circumstances of the case,  the appeal  stands  

allowed to the extent  explained hereinabove. The finding recorded by  

the High Court regarding malice is unwarranted and hereby set aside.  

Further, the finding that CMD, ECL was not competent to initiate the  

proceeding is also not sustainable in the eyes of law and thus, hereby  

set  aside.   It  is  open to the appellants  to  initiate  fresh disciplinary  

proceedings,  i.e.,  issuing  a  fresh  chargesheet  by  the  competent  

authority as per the Rules 1978 and concluding the proceedings under  

all circumstances within a period of 6 months from today.  It is made  

clear that in case the delinquent does not participate or co-operate in  

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the inquiry, the inquiry officer, may proceed ex-parte passing such an  

order recording reasons.   

44. In the last, the delinquent has submitted that this Court must  

issue directions for his reinstatement and payment of arrears of salary  

till date.  Shri Bandopadhyay, learned senior counsel appearing for the  

appellants,  has  vehemently  opposed  the  relief  sought  by  the  

delinquent contending that the delinquent has to be deprived of the  

back wages on the principle of “no work – no pay”.  The delinquent  

had been practicing privately i.e. has been gainfully employed, thus,  

not  entitled  for  back  wages.  Even  if  this  Court  comes  to  the  

conclusion that the High Court was justified in setting aside the order  

of punishment and a fresh enquiry is to be held now, the delinquent  

can  simply  be  reinstated  and  put  under  suspension  and  would  be  

entitled to subsistence allowance as per the Service Rules applicable  

in his case.  The question of back wages shall be determined by the  

disciplinary authority in accordance with law only on the conclusion  

of the fresh enquiry.  It is settled legal proposition that result of the  

fresh inquiry in such a case relates back to the date of termination.

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45. The submissions advanced on behalf of the appellants that the  

result of the inquiry in such a fact-situation relates back to the date of  

imposition of punishment, earlier stands fortified by the large number  

of judgments of this Court and particularly in  R. Thiruvirkolam v.  

Presiding  Officer  &  Anr.,  AIR  1997  SC  637;  Punjab  Dairy  

Development Corporation Ltd.  & Anr. v.  Kala Singh etc., AIR  

1997  SC  2661;  and  Graphite  India  Ltd.  &  Ors.  v.  Durgapur  

Project Ltd. & Ors., (1999) 7 SCC 645.   

46. In  Managing  Director,  ECIL,  Hyderbad  etc.  etc.  v.  B.  

Karunakar etc. etc., (Supra); and  Union of India v. Y.S. Sandhu,  

Ex.  Inspector, AIR 2009 SC 161,  this  Court  held  that  where  the  

punishment awarded by the disciplinary authority is quashed by the  

court/tribunal on some technical ground, the authority must be given  

an opportunity to conduct the inquiry afresh from the stage where it  

stood before alleged vulnerability surfaced.  However, for the purpose  

of holding the fresh inquiry, the delinquent is to be reinstated and may  

be  put  under  suspension.   The  question  of  back  wages  etc.  is  

determined by the disciplinary authority in accordance with law after  

the fresh inquiry is concluded.  

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47. The issue of entitlement of back wages has been considered by  

this  Court  time  and  again  and  consistently  held  that  even  after  

punishment imposed upon the employee is quashed by the court or  

tribunal,  the  payment  of  back  wages  still  remains  discretionary.  

Power to grant  back wages is  to be exercised by the court/tribunal  

keeping in view the facts in their entirety as no straitjacket formula  

can be evolved, nor a rule of universal application can be laid for such  

cases. Even if the delinquent is re-instated, it would not automatically  

make him entitled for back wages as entitlement to get back wages is  

independent of re-instatement. The factual scenario and the principles  

of justice, equity and good conscience have to be kept in view  by an  

appropriate authority/court or tribunal. In such matters, the approach  

of  the  court  or  the  tribunal  should  not  be  rigid  or  mechanical  but  

flexible and realistic. (Vide:  U.P.SRTC v. Mitthu Singh, AIR 2006  

SCC  3018;  Secy.,  Akola  Taluka  Education  Society  &  Anr.  v.  

Shivaji  &  Ors., (2007)  9  SCC  564;  and  Managing  Director,  

Balasaheb Desai  Sahakari  S.K.  Limited  v.  Kashinath  Ganapati  

Kambale,  (2009) 2 SCC 288).

48. In view of the above, the relief sought by the delinquent that the  

appellants be directed to pay the arrears of back wages from the date  

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of first termination order till date, cannot be entertained and is hereby  

rejected.  In case the appellants choose to hold a fresh inquiry, they  

are  bound to  reinstate  the  delinquent  and,  in case,  he is  put  under  

suspension,  he  shall  be  entitled  for  subsistence  allowance  till  the  

conclusion of the enquiry. All other entitlements would be determined  

by  the  disciplinary  authority  as  explained  hereinabove  after  the  

conclusion of the enquiry. With these observations, the appeal stands  

disposed of.   No costs.  

  ……………………..J.     (P. SATHASIVAM)

                       ……………………..J.    (Dr. B.S. CHAUHAN)

New Delhi, April 6, 2011

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