Chairman-Cum-M.D.,Coal India Ld.& Ors vs Ananta Saha & Ors

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. Grade of Employee Disciplinary Penalties Appellate

No. Authority which it may Authority

impose

1. 2. 3. 4. 5.

1. .......................

2. (a) Officers in Grade Chairman- All penalties Board of

E-1 to M-3 posted in cum Directors

CIL or any of the Managing Coal India

Subsidiary Director, Ltd.

Companies Coal India

Ltd.

(b) ....................

(c) ....................

3. (a) Officers in grade CMD of the All penalties Chairman-

E-1 to M-3 posted in concerned except those cum

Subsidiary Subsidiary under Rule Managing

Companies Company 27.1(iii)(b) to Director, CIL

27.1(iii)(d)

(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.

2 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.

2 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

2

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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