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SLP(C)No. 29589 of 2009

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 29589 OF 2009

Punjab State Power Corporation Ltd. Patiala & Ors. …......Petitioners

Versus

Atma Singh Grewal ….......Respondent  

O R D E R  

1.Petitioner No. 1 is the Punjab State Electricity Board (PSEB); Petitioner No. 2 is   

the Chief Engineer, HRD-cum-Inquiry Officer and Petitioner No. 3 is the Senior  

Executive Engineer working in PSEB.  Respondent was the employee of PSEB  

who retired from service, with effect from 30.4.2004. He had given the notice on  

27.2.2004 for voluntary retirement which was accepted. As a result, the respondent  

stood  voluntary  retired  from  30.4.2004.  However,  almost  4  years  after  his  

retirement  i.e.  on  7.1.2008,  the  respondent  was  served  with  the  charge  sheet  

levelling certain allegations against him, allegedly committed between 15.5.2002 to  

3.12.2002. These charges which were for the period May 2002 to December 2002  

were obviously of a period much earlier than 4 years before the serving of the  

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charge sheet dated 7.1.2008 and much after his retirement when he had ceased to  

be the employee of PSEB.

2.The Respondent filed the Writ Petition in the High Court seeking quashing of the  

said charge sheet on the ground that it was barred in view of Rule 2.2.(B) of the  

Punjab Civil Service Rules 2 reserves right with the Government to withhold or  

withdraw a pension or a part of it under certain circumstances viz. when in judicial  

proceedings  or  departmental  proceedings,  such  an  employee  is  found  to  have  

committed  grave  misconduct  or  negligence.  It  also  provides  for  recovery  of  

peculiar  loss,  if  caused.  However,  second  proviso  to  the  aforesaid  provision  

stipulates the time limit within which the departmental inquiry can be instituted, in  

respect of an ex-employee if it was not stated while such a Government officer was  

in service. The precise language of second proviso is as follows:-   

“Such departmental proceedings, if not instituted while the officer  was  in  service  whether  before  his  retirement  or  during  his  re- employment:-

(i) shall  not  be  instituted  save  with  the  sanction  of  the  Government;

(ii) shall not be in respect of any event which took place  more than four years before such institution; and if he has  retired, the event should not be more than 4 years old.

(iii)shall be conducted by such authority and in such place as  the  Government  may  direct  and  in  accordance  with  the  

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procedure applicable to departmental proceedings in which an  order of dismissal from service could be made in relation to  the officer during his service.

3.In the present case since the changes were of the year 2002 and charge sheet  

served in the year 2008, it was manifest that the alleged event took place much  

more than 4 years before the serving of charge sheet and after his retirement. In this  

ground the learned Single Judge quashed the said chargesheet dated 7.1.2008. The  

petitioners  chose to file  appeal  before the Division Bench which has also been  

dismissed by the Division Bench vide impugned judgment dated 20.8.2009.  

4.After hearing the Counsel for the parties we are of the opinion that in view of  

aforesaid admitted facts, second proviso of Rule 2 states at the face of the petitioner  

and no fault can be found in the judgment of the High Court.  

5.Virtually accepting the aforesaid position the learned Counsel for the petitioner  

made a fervent plea the cost of Rs. 10,000/- which the Division Bench of the High  

Court has imposed upon the PSEB, with direction that PSEB shall recover the same  

from the officer who authorised the filing of the said appeal. He submitted that in  

any case such a direction for recovery of the amount from the concerned officer  

should be done away with.  

6.The reason given by the High Court while imposing the cost is as under:

“This is yet another instance of a frivolous appeal filed at the hands  

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of a statutory body. There was absolutely no merit and no cause to  file the instant appeal. Despite the same, the Punjab State Electricity  Board,  chose  to  prefer  the  instant  appeal  without  application  of  mind. In this case, the Punjab State Electricity Board has not only  incurred  unnecessary  expenses,  but  also  wasted  precious  Court  time.   In view of the above, we are of the view, that the instant appeal  deserves  to  be  dismissed  with  costs.  The  instant  appeal  is,  accordingly,  dismissed  with  costs  quantified  at  Rs.  10,000/-.  the  aforesaid costs shall not be borne by the Electricity Board, but shall  be  recovered  from  the  officer  who  authorized  the  filing  of  the  instant  appeal.  The aforesaid costs  shall,  in  the first  instance,  be  deposited  by  the  appellant  with  the  Legal  Services  Authority,  Punjab, within one month from today. The recovery thereof shall be  made from the  concerned officer  within  a  further  period of  two  months.  

In case, the aforesaid recovery is made from an officer who feels  that the actual responsibility for filing the instant appeal rested on  the shoulders of some other officer, it would be open to such officer  to approach this Court by moving a civil miscellaneous application  (in the instant Letters Patent Appeal) so as to require this Court to  determine the accountability of the officer concerned”.

Since the provisions of the aforesaid statutory rule are crystal clear, we are  

in agreement with the High Court that the appeal preferred by the petitioners was  

totally  frivolous.  Therefore,  the High Court  has  rightly awarded the  cost  while  

dismissing such a  merit less appeal. The only question is of recovery of this cost  

from the officer who authorised the filing of the said appeal.  

7. Here we may note that the Courts are burdened with unnecessary litigation  

primarily because of  the reason that the Government or PSUs etc. decide to file the  

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appeals even when there is absolutely no merit  therein.  Commenting on such a  

tendency to file frivolous appeals,  this Court in a recent judgment in a case of  

Gurgaon Gramin Bank v. Khazani; (2012) 8 SCC 781, speaking through one of us  

(K.S. Radhakrishnan, J.) expressed its discomfiture in the following words:

“The number of litigations in our country is on the rise, for small  and trivial matters, people and sometimes the Central and the State  Governments and their instrumentalities like banks, nationalised or  private,  come to Courts  may be due to ego clash or  to  save the  officers skin. The judicial system is overburdened which naturally  causes delay in adjudication of disputes. Mediation Centres opened  in  various  parts  of  our  country  have,  to  some  extent,  eased  the  burden of the courts but we are still in the tunnel and the light is far  away.  On  more  than  on  occasion,  this  Court  has  reminded  the  Central  Government,  the  State  Governments  and  other  instrumentalities  as  well  as  to the various banking institutions to  take earnest efforts to resolve the disputes at their end. At times,  some give and take attitude should be adopted or both will  sink.  Unless  serious  questions  of  law  of  general  importance  arise  for  consideration or a question which affects a large number of persons  or the stakes are very high, the courts jurisdiction cannot be invoked  for resolution of small and trivial matters. We are really disturbed  by the manner in which those types of matters are being brought to  courts even at the level of the Supreme Court of India and this case  falls in that category”.

8.  It is not the first time that the Court had to express its anguish. We would  

like to observe that the mind set of the Government agencies/ undertakings in filing  

unnecessarily appeals was taken note of by the Law Commission of India way back  

in 1973, in its 54th report. Taking cognizance of the aforesaid report of the Law  

Commission as well as National Litigation Policy for the States which was evolved  

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at  an  All  India  Law Ministers  Conference  in  the  year  1972,  this  Court  had to  

emphasize that there should not be unnecessary litigation or appeals. It was so done  

in the case of  Mundrika Prasad Singh v. State of Bihar;  1979 (4) SCC 701.  We  

would also like to reproduce the following words of wisdom expressed by Justice  

V.R. Krishna Iyer, who spoke for the Bench, in  Dilbagh Rai Jarry v. Union of   

India and Ors.; 1974 (3) SCC 554.

“But  it  must  be  remembered  that  the  State  is  no  ordinary  party  trying to win a case against one of its own citizens by hook or by  crook; for the State's interest is to meet honest claims, vindicate a  substantial defence and never to score a technical point or overreach  a weaker party to avoid a just liability or secure an unfair advantage,  simply because legal devices provide such an opportunity. The State  is a virtuous litigant and looks with unconcern on immoral forensic  successes  so  that  if  on  the  merits  the  case  is  weak,  government  shows a willingness to settle the dispute regardless of prestige and  other lesser motivations which move private parties to fight in court.  The lay out on litigation costs and executive time by the State and  its agencies is so staggering these days because of the large amount  of litigation in which it is involved that a positive and wholesome  policy  of  cutting  back  on  the  volume  of  law  suits  by  the  twin  methods of not being tempted into forensic show downs where a  reasonable adjustment is feasible and ever offering to extinguish a  pending  proceeding  on  just  terms,  giving  the  legal  mentors  of  government some initiative and authority in this behalf”.

9.In its 126th Report (1988), the Law Commission of India adversely commented  

upon the reckless manner in which appeals are filed routinely. We quote hereunder  

the relevant passage therefrom:

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“2.5. The  litigation  is  thus  sometimes  engendered  by  failing  to  perform duty as if discharging a trust. Power inheres a kind of trust.  The  State  enjoys  the  power  to  deal  with  public  property.  That  power has to be discharged like a trust keeping in view the interests  of  the  cesti  que trust.  Failure on this  front  has been more often  commented upon by the court which, if it was taken in the spirit in  which  it  was  made,  would  have  long  back  energised  the  Government and the public sector to draw up its litigation policy.  When entirely frivolous litigation reaches the doorsteps of the  Supreme Court, one feels exasperated by the inaction and the  policy  to  do  nothingness  evidenced  by  blindly  following  litigation  from  court  to  court. Dismissing  a  Special  Leave  Petition  by  the  State  of  Punjab,  the  Court  observed  that  the  deserved defeat of the State in the courts below demonstrates the  gross indifference of the administration towards litigative diligence.  The court then suggested effective remedial measures. It may be  extracted:

We  would  like  to  emphasize  that  Government  must  be  made  accountable  by  parliamentary  Social  audit  for  wasteful litigative expenditure inflicted on the community  by inaction. A statutory notice of the proposed action under  section 80CPC is intended to alert the state to negotiate a  just  settlement  or  at  least  have  the  courtesy  to  tell  the  potential  outsider  why the  claim is  being  resisted.  Now  section 80 has become a ritual because the administration  is  often  unresponsive  and  hardly  lives  up  to  the  parliament's  expectation  in  continuing  section  80  in  the  Code  despite  the  Central  Law  Commission's  recommendations  for  its  deletion.  An  opportunity  for  setting the dispute through arbitration was thrown away by  sheer  inaction.  A litigative  policy  for  the  State  involves  settlement  of  governmental  disputes  with  citizens  in  a  sense  of  conciliation  rather  than  in  a  fighting  mood.  Indeed, it should be a directive on the part of the State  to  empower its  law  officer  to  take  steps  to  compose  disputes  rather than continue  them in  court.  We are  constrained to make these observations because much  

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of the litigation in which governments are involved adds  to the case load accumulation in courts for which there  is public criticism. We hope that a more responsive spirit  will be brought to bear upon governmental litigation so as  to avoid waste of public money and promote expeditious  work in courts of cases which deserve to be attended to.

Nearly a decade has passed since the observations but not a leaf has  turned,  not  a  step  has  been  taken,  and  the  Law Commission  is  asked to deal with the problem. 2.6. A  little  care,  a  touch  of  humanism,  a  dossier  of  constitutional  philosophy  and  awareness  of  futility  of  public  litigation  would  considerably  improve  the  situation  which  today  is  distressing. More  often  it  is  found  that  utterly  unsustainable contentions are taken on behalf of Government and  public sector undertakings.”

10. Even  when  Courts  have,  time  and  again,  lamented  about  the  frivolous  

appeals filed by the Government authorities,  it has no effect on the bureaucratic  

psyche. It is not that there is no realisation at the level of policy makers to curtail  

unwanted Government litigation and there are deliberations in this behalf from time  

to time. Few years ago only, the Central Government formulated National Litigation  

Policy,   2010  with  the  “vision/  mission”  to  transform the  Government  into  an  

efficient and responsible litigant. This policy formulated by the Central Government  

is based on the recognition that it was its primary responsibility to protect the rights  

of  citizens,  and to respect  their  fundamental  rights  and in the process it  should  

become “responsible litigant”. The policy even defines the expression 'responsible  

litigant' as under:-

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“Responsible litigant” means

•That litigation will not be resorted to for the sake of litigating. •That false pleas and technical  points will  not be taken and  shall be discouraged. •Ensuring that the correct facts and all relevant documents will  be placed before the Court. •That nothing will be suppressed from the Court and there will  not attempt to mislead any court or tribunal.

That  Government  must  cease  to  be  a  compulsive  litigant.  The  philosophy  that  matters  should  be  left  to  the  courts  for  ultimate  decision has  to  be discarded.  The easy approach,  “Let  the Court  decide”, must be eschewed and condemned.

The purpose underlying this  policy is  also to  reduce government  litigation in courts so that  valuable court time would be spent in  resolving  other  pending  cases  so  as  to  achieve  the  goal  in  the  national  legal  mission to  reduce  average  pendency time from 15  years to 3 years. Litigators on behalf of the Government have to  keep in mind the principles incorporated int eh national mission for  judicial  reforms which includes identifying bottlenecks which the  Government  and  its  agencies  may  be  concerned  with  and  also  removing unnecessary government cases.  

Prioritisation  in  litigation  has  to  be  achieved  with  particular  emphasis on welfare legislation, social reform, weaker sections and  senior  citizens  and  other  categories  requiring  assistance  must  be  given utmost priority”.

11. This policy recognises the fact that its success will depend upon its strict  

implementation. Pertinently there is even a provision of accountability on the part  

of the officers who have to take requisite steps in this behalf.

12. The policy also contains the provision for filing of appeals indicating as to  

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under what circumstances appeal should be filed. In so far as service matters are  

concerned, this provision lays down that further proceedings will not be filed in  

service matters merely because the order of the Administrative Tribunal affects a  

number of employees. Also, appeals will not be filed to espouse the cause of one  

section of employees against another.

13. The  aforesaid  litigation  policy  was  seen  as  a  silver  living  to  club  

unnecessary  and  uncalled  for  litigation  by  this  Court  in  the  matter  of   Urban  

Improvement  Trust,  Bikaner  v.  Mohan Lal;  2010 (1)  SCC 512  in  the following  

manner:-

“The Central Government is now attempting to deal with this issue  by formulating  realistic  and practical  norms for  defending cases  filed against the Government and for filing appeals  and revisions  against  adverse  decisions,  thereby  eliminating  unnecessary  litigation. But it is not sufficient if the Central Government alone  undertakes  such  an  exercise.  The  State  Governments  and  th4e  statutory  authorities,  who have  more  litigations  than the  Central  Government,  should  also  make  genuine  efforts  to  eliminate  unnecessary litigations. Vexatious and unnecessary litigations have  been clogging the wheels of justice for too long, making it difficult  for courts and tribunals to provide easy and speedy access to justice  to bona fide and needy litigants”.

14. Alas,  inspite  of  the  Government's  own  policy  and  reprimand  from  this  

Court,  on numerous occasions,  there  is  no significant  positive effect  on various  

Government officials who continue to take decision to file frivolous and vexatious  

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appeals.  It imposes unnecessary burden on the Courts. The opposite party which  

has  succeeded in the Court  below is  also  made to  incur  avoidable  expenditure.  

Further, it causes delay in allowing the successful litigant to reap the fruits of the  

judgment rendered by the Court below.

15. No doubt, when a case is decided in favour of a party, the Court can award  

cost as well in his favour. It is stressed by this Court that such cost should be in real   

and compensatory terms and not merely symbolic. There can be exemplary costs as  

well when the appeal is completely devoid of any merit. [See Rameshwari Devi and  

Ors. v. Nirmala Devi and Ors.; (2011) 8 SCC 249]. However, the moot question is  

as to whether imposition of costs alone will prove deterrent?  We don't think so. We  

are of the firm opinion that imposition of cost on the State/ PSU's alone is not going  

to make much difference as the officers taking such irresponsible decisions to file  

appeals  are  not  personally affected because  of  the reason that  cost,  if  imposed,  

comes from the government's coffers.   Time has, therefore, come to take next step  

viz. recovery of cost from such officers who take such frivolous decisions of filing  

appeals, even after knowing well that these are totally vexatious and uncalled for  

appeals. We clarify that such an order of recovery of cost from the concerned officer  

be passed only in those cases where appeal is found to be ex-facie frivolous and the  

decision to file the appeal is also found to be palpably irrational and uncalled for.  

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16.  In a case like the present, where the concerned officer took the decision to  

file the appeal, direction  of the High Court to recover the cost from him cannot be  

faulted with. Sense of responsibility would drawn on such officers only when they  

are made to pay the costs from their pockets, instead of burdening the exchequer.  

17. We are, therefore, not inclined to recall the aforesaid direction of the High  

Court to recover the cost from the officer concerned.  

18. Dismissed with further cost of Rs. 10,000/-.

…........................................J. [K.S. RADHAKRISHNAN]

…..........................................J. [A.K. SIKRI]

New Delhi September 17, 2013

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