CHAIRMAN-CUM-M.D.,COAL INDIA LD. Vs ANANTA SAHA .
Bench: P. SATHASIVAM,B.S. CHAUHAN, , ,
Case number: C.A. No.-002958-002958 / 2011
Diary number: 33810 / 2008
Advocates: Vs
RESPONDENT-IN-PERSON
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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
2
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.
3
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
4
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
5
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
6
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
7
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.
8
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
9
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
1
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
1
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. &
1
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:
1
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
1
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
1
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
1
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
1
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.
1
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
1
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).
2
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
2
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
2
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.”
2
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
2
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
2
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
2
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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