TMI Blog2011 (4) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y construed it to have been issued by OSD of the company. The High Court failed to appreciate that the charge sheet 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 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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: SCHEDULE UNDER RULE 27.0 Sl. No. Grade of Employee Disciplinary Authority Penalties which it may impose Appellate Authority 1 2 3 4 5 1. 2. (a) Officers in Grade E-1 to M-3 posted in CIL or any of the Subsidiary Companies Chairman cum Managing Director, Coal India Ltd. All penalties Board of Directors Coal India Ltd. (b) .. (c) .. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y/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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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