Supreme Court of India
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS.versusANANTA SAHA & ORS.
- Citation
- 2011 INSC 276
- Decided
- 6 April 2011
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
The CMD of Coal India Ltd (or the CMD of the subsidiary) is the competent authority to initiate and impose major penalties, but a fresh charge‑sheet is required for a de novo inquiry; the earlier proceedings were vitiated, and the High Court's findings of bias and incompetence are set aside.
Summary
A Medical Officer employed by Coal India Ltd and posted at its subsidiary Eastern Coalfields Ltd assaulted his senior officer and other staff, leading to disciplinary proceedings that resulted in his dismissal by the subsidiary's CMD. The dismissal was challenged in the Calcutta High Court, which quashed the order and directed a fresh inquiry, but later upheld the dismissal on the ground that the inquiry was not initiated by a competent authority. The Supreme Court held that both the CMD of Coal India Ltd and the CMD of the subsidiary are competent to initiate and impose major penalties, but a de novo inquiry must be started with a fresh charge‑sheet; the earlier proceedings were therefore vitiated. The Court also set aside the High Court's findings of bias and incompetence, clarified that a speaking order is required for dismissal, and ruled that the employee is not automatically entitled to back wages. Consequently, the appellants may conduct a fresh disciplinary inquiry within six months, reinstating the employee on suspension if he does not cooperate.
Issues considered
- The competence of the CMD of Coal India Ltd versus the CMD of the subsidiary to initiate disciplinary proceedings and impose dismissal.
- Whether a de novo disciplinary inquiry can be validly conducted without issuing a fresh charge‑sheet.
- The correctness of the High Court's findings of bias and lack of competence in the disciplinary process.
- The entitlement of the employee to back wages following a quashed dismissal.
- The requirement of a speaking order and compliance with procedural rules, including limitation periods for statutory appeals.
Legislation cited
- Constitution of Indias. Article 311
- General Clauses Act, 1897s. Section 27
- Indian Evidence Act, 1872s. Section 114 (Illustration f)
Subjects
disciplinary inquirydismissalcompetent authoritybiasde novo proceedingsservice lawback wagesArticle 311Coal India
Judgment
(2011] 5 S.C.R. 44
A CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS.
v.
ANANTA SAHA & ORS.
(Civil Appeal No. 2958 of 2011)
B APRIL 6, 2011
[P. SATHASIVAM AND DR. B.S.CHAUHAN, JJ.]
Service Law:
C Disciplinary inquiry - Medical Officer appointed by the
principal company and posted in subsidiary company -
Complaint against, for abusing and attempting to assault his
senior, the Chief Medical Officer, and beating others who tried
to intervene - Punishment of dismissal from service, awarded
o by CMD of subsidiary company - Set aside by High Court
holding that it was not passed by the competent autt1ority -
Liberty given to employers to initiate the proceedings de novo
- Proceedings held again, but on the basis of the earlier
charge-sheet - HELD: High Court erred in holding that CMD
E of the subsidiary company was not competent to initiate the
proceedings - However, since the entire previous proceedings
including the charge-sheet issued earlier stood quashed,
inquiry could not have been initiated without giving a fresh
charge-sheet - There was no proper initiation of disciplinary
proceedings after the first round of litigation and, as such, all
F
the consequential proceedings stood vitiated - In case the
employers choose to hold a fresh inquiry, they would reinstate .
the delinquent - All the entitlements of the delinquent would
be determined by the disciplinary authority in accordance with
law - Coal India Executives (Conduct Discipline and Appeal)
G Rules 1978 - rr. 27 and 28 - Constitution of India, 1950 -
Article 311 - Maxim "sub/ato fundamento cadit opusn -
Applicability of - Administrative Law - Bias.
Disciplinary inquiry - Revival of - HELD: The order of
H 44
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 45
ANANTA SAHA & ORS.
revival reveals that the note prepared by the OSD was merely A
signed by the disciplinary authority in a routine manner -
There is nothing on record to show that the disciplinary
authority put its signature after applying its mind - Therefore,
it cannot be said that the proceedings had been properly
revived - The order of revival could not be sufficient to initiate B
any disciplinary proceedings.
Disciplinary inquiry - Order of dismissal - Requirement
of a speaking order - HELD: An order of dismissal from
service passed against a delinquent and the proceedings C
held against such a public servant under the statutory rule 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 reasons for initiation of the inquiry and
conclusion thereof.
D
Evidence Act, 1872:
s. 114, Illustration (f) - Presumption as to service of
notice - Disciplinary inquiry - Notice sent to delinquent by
registered post - Delinquent not participating in the E
proceedings and contending that notices were not served
upon him in accordance with law :- HELD: 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, uls 27 of the General Clauses F
Act, 1897 and s.114 Illustration (f) of the Evidence Act that
the addressee has received the materials sent by post -
General Clauses Act, 1897 - s.27.
Constitution of India, 1950:
G
Article 226 - Writ petition challenging disciplinary inquiry
and dismissal order - Statutory appeal against order of
dismissal pending - HELD: Writ petition could not have been
proceeded with and heard on merits when statutory appeal
H
46 SUPREME COURT REPORTS [2011] 5 S.C.R.
A was pending - Department also proceeded with the case
without any sense of responsibility, as subsequent to
dismissal of writ petition and writ appeal by High Court, the
statutory appeal filed by delinquent after 15 months of the
order of punishment was entertained though the /imitation
B prescribed under the Rules was 30 days and the appeal was
dismissed on merits without dealing with the issue of limitation
- Coal India Executives (Conduct, Discipline and Appeal)
Rules, 1978 - Appeal - Limitation.
Administretive Law:
c
Bias - Held: The presumption is in favour of bonafides
of the order unless contradicted by acceptable material - In
the instant case, though in respect of the a/legation of bias I
prejudice ma/afides, a ground has been taken in the writ .
D petition before the High Court, but no material on record could
be pointed out to substantiate the allegation.
Respondent no. 1, a Medical Officer (E-2 Grade}
employed by Coal India Ltd. (CIL}, while posted at the
E Central Hospital established under the control of Eastern
Coal Fields Ltd. (ECL}, a subsidiary of CIL, abused and
made an atte "Pt to physically assault the Chief Medical
Officer. In the process, the other officers who tried to
intervene got assaulted. On conclusion of the disciplinary
r:: proceedings, the Chief Managing Director of ECL, by his
' order dated 17.6.1993, dismissed the delinquent from
service. The order was challenged in a writ petition, whic.h
was allowed by the Single Judge holding that CMD, CIL
was the competent authority to pass the order of
punishment. However, liberty was given to the employees
G to initiate the proceedings de novo. The Division Bench
of the High Court by order dated 8.8.2001 dismissed the
appeal. Accordingly, disciplinary proceedings were
initiated afresh. The delinquent did not participate in the
proceedings which were concluded ex-parte. The
H
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 47
ANANTA SAHA & ORS.
charges were proved and the CMD, CIL passed the order A
of dismissal on 24.2.2004. The delinquent filed the
statutory appeal belatedly on 27 .5.2005, and without
waiting for its result filed a writ petition before the High
Court. The writ petition "Yas allowed by the Single Judge
holding that the disciplinary authority did not ensure B
compliance with the orders dated 8.8.2001 passed by the
High Court and that the fresh inquiry was not initiated by
the competent authority as it was initiated by the Officer
on Special Duty and had been merely seen by the CMD,
ECL. The Division Bench of the High Court dismissed the c
employers' appeal holding that the disciplinary
proceedings had been initiated by an authority not
competent to initiate the proceedings and no person
other than the CMD, CIL could initiate the same.
Aggrieved, the employers filed the appeal. 0
Disposing of the appeal, the Court
HELD: 1. The charge-sheet dated 26.7.1991 reveals
a very serious misconduct by the delinquent as on
29.6.1991 the delinquent tried to assau.lt the CMOj and E
when other employees tried to intervene, they were
beaten by the deiinq.uent. The charge-sheet further
reveals that the delinquent had also been found guilty of
serious misconduct in respect of charge-sheet dated
18.4.1989. However, the management was watching his F
behaviour and during this time, the delinquent committed
the misconduct again on 29.6.1991. [para 11) [62-B-E]
2.1. So far as the competence to initiate the
disciplinary proceedings is concerned, the Coal India G
Executives (Conduct, Discipline and Appeal) Rules 1978
provide complete guidance and rr. 27 and 28 thereof, if
read together, cumulatively provide that major penaltie~.
including dismissal from service can be awarded only by
CMD, CIL. Rule 28.3 clearly stipulates that the disciplinary
H
48 SUPREME COURT REPORTS [2011) 5 S.C.R.
A proceedings can be initiated by the authorities shown in
the Schedule framed under r. 27. However, in a case
where major penalty is to be imposed, the matter be·
referred to the CMD, CIL. [para 19] [64-G-H; 65-A]
2.2. This Court while interpreting the provisions of
8
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
subordinate to that by which he was appointed.
C "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". [para 20] [66-B-C]
D Sampuran Singh v. State of Punjab, AIR 1982 SC 1407;
and State of U.P. & Anr. v. Chandrapal Singh & Anr., 2003
=
(2) SCR 1062 (2003) 4 sec 670 - relied on.
2.3. In the instant case, admittedly, the delinquent
E 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 Subsidiary Company
concerned, i.e., ECL. As the delinquent was working in
F the Subsidiary Company, the High Court erred in holding
that in such an eventuality the CMD of the Subsidiary
Company concerned was not competent to initiate the
proceedings. [para 21] (66-E]
2.4. The plea of the delinquent that at the time of his
G appointment, the CMD, CIL was the competent authority
to initiate the disciplinary proceedings and if the rules
were subsequently amended that would not be
applicable in his case, cannot be considered. It is well
established that Rules made under the proviso to Article
H
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 49
ANANTA SAHA & ORS.
309 of the Constitution of India being legislative in nature A
and character, could be given effect to retrospectively.
[para 12-14) [62-F-G; 63-C)
Roshan Lal Tandon v. Union of India & Anr., 1968
SCR 185 =AIR 1967 SC 1889, State of Mysore v. Krishna B
Murthy & Ors., 1973 (2) SCR 575 =AIR 1973 SC 1146; Raj
Kumar v. Union of India & Ors., 1975 (3) SCR 963 =AIR 1975
SC 1116; and Ex-Capt. K. C. Arora & Anr. v. State of Haryana
& Ors., 1984 (3) SCR 623 = (1984) 3 SCC 281, Keshav Lal
Soni & Ors., 1983 (2) SCR 287 = AIR 1984 SC 161, K. C
Nagaraj & Ors. v. State of Andhra Pradesh & Anr. etc., AIR
1985 SC 551, 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, State of
Karnataka & Anr. v. Mangalore University Non- Teaching
Employees Association & Ors., 2002 (2) SCR 121 = AIR D
2002 SC 1223, State of Tamil Nadu v. Mis. Hind Stone etc.
etc. AIR 1981 SC 711; V. Kamal Durai v. District Collector,
Tuticorin & Anr., (1999) 1 SCC 475; Union of India and Ors.
v. Indian Charge Chrome & Anr. (1999) 7 SCC 314; and
Howrah Municipal Corporation & Ors. v. Ganges Rope E
Company Ltd. & Ors. (2004) 1 sec 663 - relied on.
3.1. Further, the delinquent did not participate in the
disciplinary proceedings nor did he make any comment
on receiving the inquiry report along with the second F
show cause notice and contended that the notices had
not been served 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, u/ G
i
s 27 of the General Clauses Act, 1897 and s.114
Illustration (f) of the Evidence Act, 1872 that the
addressee has received the materials sent by post. [para
22] [66-F-H; 67-A]
H
50 SUPREME COURT -REPORTS [2011] 5 S.C.R.
A Greater Mohali Area Development Authority & Ors. v.
Manju Jain & Ors., 2010 (10 ) SCR 134 = AIR 2010 SC
3817 - relied on.
3.2. In the instant case, the proceeciings were held
ex-parte against the delinquent as he failed to appear in
8
spite of notice and such a course of the inquiry officer
was justified. There is no averment by the delinquent that
he did not receive the notice and the copy of the inquiry
report. The plea taken by the delinquent shows that he
C has adopted a belligerent attitude and kept the litigation
alive for more than two decades merely on technical
grounds. 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 merits when the statutory appeal was pending
D before the Board of Directors, CIL. [para 23] [67-B-E]
State of UP. v. Saroj Kumar Sinha, 2010 (2) SCR 326
=AIR 2010 SC 3131, Transport and Dock Workers Union &
Ors. v. Mumbai Port Trust & Anr., 2010 (14 ) SCR 873 =
E (2011) 2 SCC 575 - relied on.
4.1. 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
F delinquent after 15 months of imposition of punishment
was entertained, though the limitation prescribed under
the 1978 Rules is only 30 days and the appeal has been
dismissed on merits without dealing with the issue of
limitation. [para 23] [67-F-G]
G
4.2. In the first round of litigation, the Single Judge
of the High Court by judgment and order dated 22.2.2001
after quashing the orders impugned therein, had given
liberty to the appellants to start the proceedings de-nova
H giving adequate opportunity to the delinquent. The
CHAIRMAN-CUM-MD., COAL INDIA LTD., & ORS. v. 51
ANANTA SAHA & ORS.
Division Bench by judgment and order dated 8.8.2001 A
dismissed the appeal filed by the appellants. Thus, 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, B
the question of initiating a fresh enquiry without giving a
fresh chargesheet could not arise. [para 24-26) [68-A-E]
Union of India etc. etc. v. K. V. Jankiraman etc. etc., 1991
( 3 ) SCR 790 = AIR 1991 SC 201 O; and UCO Bank & Anr. C
v. Rajinder Lal Capoor, 2007 (7) SCR 543 = (2007) 6 SCC
694 - relied on.
4.3. The proceedings were purported to have been
revived by the CMD, ECL and the order dated 17.1.2002
reveals that the OSD had prepared the note which has D
merely been signed. by the CMD, ECL. The proposal has
. been signed by the CMD, ECL in a routine manner and
there is 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 E
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. Thus, the
said order could not be sufficient to initiate any F
disciplinary proceedings. [para 27,28 and 29) [68-F; 69-
E-F; 70-C]
4.4. This Court has repeatedly held that an order of
dismissal from service passed against a delinquent G
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 quasi-judicial in nature. The authority has
to give some reason, which may be very brief, for H
52 SUPREME COURT REPORTS (2011) 5 S.C.R.
A initiation of the inquiry and conclusion thereof. It has to
pass a speaking order and the order cannot be an ipse
dixit either of the inquiry officer or the authority. [para 29]
[69-G-H; 70-A-B]
Bachhittar Singh v. State of Punjab & Anr., 1962 Suppl.
B
SCR 713 =AIR 1963 SC 395; Union of India v. H.C. Goel,
1964 SCR 718 =AIR 1964 SC 364; Anil Kumar v. Presiding
Officer & Ors., AIR 1985 SC 1121; and Union of India & Ors.
v. Prakash Kumar Tandon, 2008 (17) SCR 855 = (2009) 2
sec 541 - relied on.
c
4.5. 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
D applicable, meaning thereby, in case a foundation is
removed, the superstructure falls. In the instant case, as
there had been no proper initiation of disciplinary
proceedings after the first round of litigation, all other
consequential proceedings stood vitiated and on that
E count no fault can be found with the impugned judgment
and order of the High Court. [para 30 and 32] [70-D; G-H]
Badrinath v. Govt. of Tamil Nadu & Ors., AIR 2000 SC
3243, State of Kera/a v. Puthenkavu N.S.S. Karayogam &
Anr., (2001) 10 SCC 191; and Kalabharati Advertising v.
F Hemant Vimalnath Narichania & Ors. 2010 (10 ) SCR 971
= AIR 2010 SC 3745 - relied on.
5.1. In respect of the allegation of bias/prejudice/
malafide, though a ground has been taken by the
G delinquent in his writ petition before the High Court, but
he could not point out any material on record to
substantiate the said averment. There has to be a very
strong and convincing evidence to establish thg
allegations of ma/a fides specifically alleged in the petition,
H as the same cannot merely be presumed. The
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 53
ANANTA SAHA & ORS.
presumption is in favour of the bona fides of the order A
unless contradicted by acceptable material. In the instant
case, there is no 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 a pre-determined mind only B
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 c
averment made by the delinquent. [para 33, 37 and 40] [71-
A-C; 72-C; 73-C]
Tara Chand Khatri v. Municipal Corporation of Delhi &
Ors., 1977 (2) SCR 198 =AIR 1977 SC 567, E.P. Royappa
v. State of Tamil Nadu & Anr., 1974 (2) SCR 348 =AIR 1974 D
SC 555, M. Sankaranarayanan, /AS v. State of Karnataka &
Ors., 1992 (2) Suppl. SCR 368 = AIR 1993 SC 763; Mis.
Sukhwinder Pal Bipan Kumar & Ors. v. State of Punjab & Ors.,
· 1982 ( 2) SCR 31 =AIR 1982 SC 65; Shivajirao Nilangekar
Patil v. Dr. Mahesh Madhav Gosavi & Ors., 1987 (1) SCR E
458 = AIR 1987 SC 294; and Samant & Anr. v. Bombay
Stock Exchange & Ors., (2001) 5 SCC 323, State of Punjab
v. V.K. Khanna & Ors., 2000 (5) Suppl. SCR 200 = (2001)
2 SCC 330, Jasvinder Singh & Ors. v. State of J & K & Ors.,
(2003) 2 SCC 132, - relied on. F
Sheo Nandan Paswan v. State of Bihar & Ors., 1987 (1)
SCR 702 =AIR 1987 SC 877; and State of Haryana & Ors.
v. Ch. Bhajan Lal & Ors., 1990 (3) Suppl. SCR 259 =AIR
1992 SC 604 - referred to.
G
5.2. Therefore, the finding of bias i.e.
predetermination of the disciplinary authority to punish
the delinquent is set aside as it is totally perverse being
based on no evidence. Further, the finding that CMD,
ECL was not competent to initiate the proceeding is also H
54 SUPREME COURT REPORTS [2011] 5 S.C.R.
A not sustainable in the eyes of law, and thus, 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 1978 Rules and
concluding the proceedings under all circumstances
B within a period of 6 months. It is made clear that in case
the delinquent does not participate or co-operate in the
inquiry, the inquiry officer, may proceed ex-parte passing
such an order recording reasons. [para 42-43] [73-F-H; 74-
A-B]
c 6.1. In B. Karunakar and Y. S. Sandhu*, this Court has
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
D 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. [para 46] [74-H; 75-A-B]
E *Managing Director, ECIL, Hyderbad etc. etc. v. B.
Karunakar etc. etc., 1993 (2) Suppl. SCR 576 =AIR 1994
SC 1074; Union of India v. Y. S. Sandhu, Ex. Inspector, AIR
2009 SC 161; R. Thiruvirkolam v. Presiding Officer & Anr.,
1996 (10) Suppl. SCR 199 =AIR 1997 SC 637; Punjab
F Dairy Development Corporation Ltd. & Anr. v. Kala Singh etc.,
1997 (1) Suppl. SCR 235 =AIR 1997 SC 2661; and
Graphite India Ltd. & Ors. v. Durgapur Project Ltd. & Ors.,
(1999) 7 sec 645, - relied on
6.2. The issue of entitlement of back wages has been
G considered by this Court time and again and it has
consistently held that even after the 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
H exercised by the court/tribunal keeping in view the facts
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 55
ANANTA SAHA & ORS.
in their entirety as no straitjacket formula can be evolved, A
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 B
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.
Therefore, in case the appellants choose to hold a fresh c
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 after the conclusion of the 0
enquiry. [para 47-48) [75-C-H; 76-A-B]
U.P.SRTC v. Mitthu Singh. 2006 (4) Suppl. SCR 672 =
. AIR 2006 SCC 3018; Secy., Ako/a Ta/uka Education Society
& Anr. v. Shivaji & Ors., (2007) 9 SCC 564; and Managing
Director, Balasaheb Desai Sahakari S.K. Limited v. E
Kashinath Ganapati Kamba/e, (2009) 2 SCC 288, relied on.
Case Law Reference:
1993 (2) Suppl. SCR 576 relied on para 4
F
1968SCR185 relied on para 13
1973 (2) SCR 575 relied on para 14
1975 (3) SCR 963 relied on para 14
1984 (3) SCR 623 relied on para 14 G
1983 (2) SCR 287 relied on para 15
AIR 1985 SC 551 relied on para 16
AIR 1999 SC 2012 relied on para 16
JT (2010) 13 SC 610 relied on para 16 H
56 SUPREME COURT REPORTS (2011] 5 S.C.R.
A 2002 (2) SCR 121 relied on para 17
AIR 1981 SC 711 relied on para 18
(1999) 1 sec 475 relied on para 18
1999 (7) sec 314 relied on para 18
B
1982 AIR 1407 relied on para 20
2003 (2) SCR 1062 relied on para 20
2010 (10) SCR 134 relied on para 21
c 2010 (2) SCR 326 relied on para 21
2010 (14) SCR 873 relied on para 23
1991 (3) SCR 790 relied on para 25
2007 (7) SCR 543 relied on para 25
D 1962 Suppl. SCR 713 relied on para 29
1964 SCR 7.18 relied on para 29
1985 AIR 1121 relied on para 29
2008 (17) SCR 855 relied on para 29
E
AIR 2000 SC 3243 relied on para 31
2001) 10 sec 191 relied on para 31
2010 (10) SCR 971 relied on para 31
F 1977 (2) SCR 198 relied on para 34
1974 (2) SCR 348 relied on para 35
1992 (2) Suppl. SCR 368 relied on para 36
1982 (2) SCR 31 relied on para 37
G
1987 (1) SCR 458 relied on para 37
2001 (5) sec 323 relied on para 37
2000 (5) Suppl. SCR 200 relied on para 38
H 2003 (2) sec 132 relied on para 39
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 57
ANANTA SAHA & ORS.
1987 (1) SCR 702 referred to para 41 A
1990 (3) Suppl. SCR 259 referred to para 41
1996 (10) Suppl. SCR 199 cited para 45
1997 (1) Suppl. SCR 235 cited para 45
B
(1999) 1 sec 645 cited para 45
2006 (4) Suppl. SCR 672 relied on para 47
(2007) 9 sec 564 relied on para 47
(2009) 2 sec 288) relied on para 47 c
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2958 Of 2011.
From the Judgment & Order dated 22.7.2008 of the High
Court of Calcutta in M.A.T. No. 2852 of 2007. D
K.K. Bandhopadhyay, Shagun Matta, Mohit Paul, Anip
Sachthey for the Appellants.
Ananta Saha Respondent-In-Person.
E
The Judgment of the Court was delivered by
OR. 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 F
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 G
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.
H
58 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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
B 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
c 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
D (hereinafter called as 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
E competent authority under the disciplinary rules was the CMD,
CIL, who had not passed the order of punishment. \Jl other
issues raised by the delinquent were left open. The appellants-
employers were given liberty to initiate the proceedings de-
novo, giving adequate oppor.unity to the delinquent to defend
F 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
G 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.,
H Al R 1994 SC 1074. However, the direction for holding the
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 59
ANANTA SAHA & ORS. [DR. B.S. CHAUHAN, J.]
disciplinary proceedings de-novo was not altered. A
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 B
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 C
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 D
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 E
of dismissal. Without waiting for the result or outcome of the
appeal pending before the Board of Directors, CIL, the
delinquent filed Writ Petition 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 F
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 G
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 H
60 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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.
B 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 not even approve it,
C 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-
D 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
E 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
F 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
initii:tted 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
G awarding the punishment; as he was the only competent
authority to award major punishments. During 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
H
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 61
ANANTA SAHA & ORS. [DR: S.S. CHAUHAN, J.]
writ petition. As the earlier disciplinary proceedings had been A
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 B
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 c
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 D
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 appointments, provided that the proceedings could be
initiated only by the CMD, CIL not by the CMD of the subsidiary E
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, F
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 G
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 H
62 SUPREME COURT REPORTS (2011] 5 S.C.R.
A 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-
s in-person.
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
C 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
o 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
E 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.
F 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 been amended, that would not be
applicable in his case as the amendment made unilaterally
G 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
H a similar issue and observed as under:-
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & cJRS. v. 63
ANANTA SAHA & ORS. [DR. B.S. CHAUHAN, J.)
" ........ The legal position of a Government servant is more A
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 B
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 C
1116; and Ex-Capt. K. C. Arora & Anr. v. State of Haryana &
Ors., (1984) 3 sec 281, this Court observed that it was well-
established that Rules made under the proviso to Article 309
of the Constitution of India, being legislative in nature and
character, could be given effect to retrospectively.
D
15. A Constitution Bench of this Court in State of Gujarat
& Anr. v. Raman Lal Keshav Lal Soni & Ors., AIR 1984 SC
161, obser.1ed as under:-
"The legislature is undoubtedly competent to legislate with E
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 F
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 G
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 H
64 SUPREME COURT REPORTS [2011) 5 S.C.R.
A away the rights of the persons who have already 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
B 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 UP. & Ors. v. Hirendra
Pal Singh etc. JT (2010) 13 SC 610).
C 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.
D
18. This Court in State of Tamil Nadu v. Mis. Hind Stone
etc. etc., AIR 1981 SC 711; V. Kamal Durai v. District
Collector, Tuticorin & Anr., (1999) 1 SCC 475; Union of India
& Ors. v. Indian Charge Chrome & Anr., (1999) 7 SCC 314;
E and Howrah Municipal Corporation & Ors. v. Ganges Rope
Company Ltd. & 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
F 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,
G 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
H case where major penalty is to be imposed, the matter be
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 65
ANANTA SAHA & ORS. [DR. B.S. CHAUHAN, J.]
referred to the CMD, CIL. Therefore, in order to find out as to A
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:
B
SCHEDULE UNDER RULE 27.0
SI. Grade of Disciplinary Penalties Appellate
No Employee Authority which it Authority
may impose
c
1. 2. 3. 4. 5.
1. ..................
2. (a) Officers in Chairman- All Board of
Grade E-1 to cum penalties Directors D
M-3 posted in Managing Coal India
CIL or any of Director, Ltd.
the Subsidiary Coal India
Companies Ltd.
E
(b) ...............
(c) ...............
3. (a) Officers in CMD of the All Chairman-cum
grade E-1 to concerned penalties Managing F
M-3 posted Subsidiary except Director, CIL
in Subsi- Company those
diary under
Companies Rule
27 .1 (iii) G
(b) to 27.1
(iii)( d)
(b) ··············
(c) ······ ......... H
66 SUPREME COURT REPORTS [2011) 5 S.C.R.
A 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
8
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 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
C remove an official, should itself initiate or conduct enquiry
proceeding".
(See: Sampuran Singh v. State of Punjab, AIR 1982 SC
1407; and State of UP. & Anr. v. Chandrapal Singh & Anr.,
o (2003) 4 sec 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
E 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.
F 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 upon him in accordance with law.
G 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
H
CHA1RMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 67
ANANTA SAHA & ORS. [DR. B.S. CHAUHAN, J.]
materials sent by post. (vide: Greater Mohali Area A
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
8
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 C
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 earlier. D
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. E
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 F
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 G
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, GIL or by the CMD of the
H
68 SUPREME COURT REPORTS (2011] 5 S.C.R.
A 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 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
B 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
C 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 sec 694).
D 26. The High Court had given liberty to the appellants to
hold de-novo enqui,.Y, 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
E earlier. In view thereof, the question of initiating a fresh enquiry
without giving a fresh chargesheet could not arise.
27. The proceedings were purported to have been revived
by the CMD, ECL and the said order dated 17.1.2002 reads
as under:
F
"In the matter of C.R. No.11177/W of 1993, Dr. Ananta
Saha Vs. EGL & Ors., Hon'ble High Court, Calcutta has
passed an order upon the appellant to start enquiry
proceedings, de-novo, giving adequate opportunity to the
G 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
H
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 69
ANANTA SAHA & ORS. [DR. B.S. CHAUHAN, J.]
Inquiring Authority and a Presenting Officer may be A
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 B
following names are furnished.
1. Dr. R.N. Kabat, CMO, Sanctoria Hospital - Inquiring
Authority
2. Sri M.N. Chatterjee, S.O., Admn. Dept. - Presenting C
Officer
Put up for kind approval.
Sd/-
CMD OSD(PA & PR)Sd/- D
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 nothing on record to show that he E
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 F
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 G
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
H
70 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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.
B Presiding Officer & Ors., AIR 1985 SC 1121; and Union of
India & Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541 ).
Thus, the above referred to order could not be sufficient
to initiate any disciplinary proceedings.
C 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
D 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
E 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 Kera/a v. Puthenkavu N. S.S.
F 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
G initiation of disciplinary proceedings after the first round of
litigation, all other consequential proceedings stood vitiated and
on that count no fault can be found with the impugned judgment
and order of the High Court.
H
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 71
ANANTA SAHA & ORS. [DR. B.S. CHAUHAN, J.]
33. In respect of the allegation of bias/prejudice/malafide, A
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 B
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. C
34. The issue of "ma/us 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 o
the allegation of ma/a tides, if necessary particulars of the
charge making out a prima facie case are not given in the writ
petition and the burden of establishing ma/a fides lies very
heavily on the person who alleges it and that there must be
sufficient material to establish ma/us animus. E
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 F
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 G
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." '·
H
72 SUPREME COURT REPORTS [2011) 5 S.C.R.
A 36. In M. Sankaranarayanan, /AS v. State of Karnataka
& Ors., AIR 1993 SC 763, this Court observed that the Court
may "draw a reasonable inference of ma/a fide from the facts
pleaded and established. But such inference must be based
on factual matrix and such factual matrix cannot remain in the
B realm of insinuation, surmise or conjecture."
37. There has to be a very strong and convincing evidence
to establish the allegations of ma/a tides specifically alleged
in the petition, as the same cannot merely be presumed. The
c presumption is in favour of the bona tides of the order unless
contradicted by acceptable material. (Vide: Mis. 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.
D Bombay Stock Exchange & Ors., (2001) 5 SCC 323).
38. In State of Punjab v. V.K. Khanna & Ots., (2001) 2
sec 330, this Court examined the issue of bias and ma/a fide
and observed as under:-
E "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
F
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
G
distinguished from motive is the all-important factor' and
in common parlance a malicious act stands equated with
an intentional act without just cause or excuse."
(Emphasis added)
H
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 73
ANANTA SAHA & ORS. [DR. B.S. CHAUHAN, J.]
39. In Jasvinder Singh & Ors. v. State of J & K & Ors., A
(2003) 2 SCC 132, this Court held that the burden of proving
ma/a 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. B
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 C
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.
.D
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 evidence does not become vitiated on account of
malafides or political vendetta of the first informant or the E
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 F
holding that it is totally perverse being based on no evidence.
43. In the facts and circun:istances of the case, the appeal
stands allowed to the extent explained hereinabove. The finding
recorded by the High Court regarding malice is unwarranted G
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
H
74 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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 the
inquiry, the inquiry officer, may proceed ex-parte passing such
B 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
C 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
D 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
E 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.
F 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
G 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.
H
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS. v. 75
ANANTA SAHA & ORS. [DR. B.S. CHAUHAN, J.]
Sandhu, Ex. Inspector, AIR 2009 SC 161, this Court held that A
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, B
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.
47. The issue of entitlement of back wages has been
c
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 D
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 E
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., Ako/a Taluka F
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 G
that the appellants be directed to pay the arrears of back wages
from the date 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
H
76 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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.
B
R.P. Appeal disposed of.
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