# 5 S.C.R. 44 CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS v. ANANTA SAHA & ORS

- **Citation:** [2011] 5 S.C.R. 44
- **Court:** Supreme Court of India
- **Decided:** 2011-04-06
- **Case number:** Civil Appeal No. 2958 of 2011
- **Bench:** P. Sathasivam, Dr. B.S.Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/5-s-c-r-44-chairman-cum-m-d-coal-india-ltd-ors-v-ananta-saha-ors-27643
- **Pages:** 33

## Headnote

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:
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
G
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.
c
Administretive Law:
Bias - Held: The presumption is in favour of bonafides
of the order unless contradicted by acceptable material

## Text

_Characters 0–39,743 of 59,823. This is a partial read: ask again with offset=39743 for what follows._

A
B
(2011] 5 S.C.R. 44
CHAIRMAN-CUM-M.D., COAL INDIA LTD., & ORS.
v.
ANANTA SAHA & ORS.
(Civil Appeal No. 2958 of 2011)
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:
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
G
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.
c
Administretive Law:
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]
8
2.2. 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
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
i
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
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
B
& 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
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
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
D
E
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
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
8
ex-parte against the delinquent as he failed to appear in
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
G
limitation. [para 23] [67-F-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; 69E-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]
B
c
Bachhittar Singh v. State of Punjab & Anr., 1962 Suppl.
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.
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] [71A-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.
5.2.
Therefore,
the
finding
of
bias
i.e.
predetermination of the disciplinary authority to punish
G
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; 74A-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 107 4; 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 reinstatement. 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
1968SCR185
relied on
para 13
F
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
E
2008 (17) SCR 855
relied on
para 29
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
D
Court of Calcutta in M.A.T. No. 2852 of 2007.
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 appellantsemployers were given liberty to initiate the proceedings denovo, 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 107 4. 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 preD 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 delinquents
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 wellestablished 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, obser.1ed as under:-
D
"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
D
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. 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:
SCHEDULE UNDER RULE 27.0
SI. Grade of
Disciplinary
Penalties
Appellate
No Employee
Authority
which it
Authority
may impose
1.
2.
3.
4.
5.
1. . .................
2.
(a) Officers in
ChairmanAll
Board of
Grade E-1 to
cum
penalties
Directors
M-3 posted in
Managing
Coal India
CIL or any of
Director,
Ltd.
the Subsidiary
Coal India
Companies
Ltd.
(b) ...............
(c) ...............
3.