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TMI Blog2011 (4) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... Asansol, established under the control of Eastern Coalfields Limited (hereinafter called as ECL), he abused and made an attempt to physically assault his senior officer Dr. P.K. Roy, the then Chief Medical Officer, unprovoked. In this process, other officers who tried to intervene stood assaulted. Disciplinary proceedings were initiated against the delinquent by issuing a chargesheet dated 26.7.1991. After the conclusion of the proceedings, the inquiry officer submitted the report holding that the charge stood proved against him. After considering the inquiry report, the delinquent was dismissed from service, vide order dated 17.6.1993, by the Chief Managing Director (hereinafter called as CMD) of the ECL, a subsidiary of the CIL. The said order of dismissal was challenged by the delinquent by filing Writ Petition CR No. 11177(W) of 1993 and the same stood allowed by the learned single Judge vide judgment and order dated 22.2.2001 on the ground that the order of dismissal had been passed in contravention of the Statutory Rules. The competent authority under the disciplinary rules was the CMD, CIL, who had not passed the order of punishment. All other issues raised by the delinque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the competent authority as it was initiated by the Officer on Special Duty (hereinafter called as OSD) and had been merely seen by the CMD, ECL. The proceedings could have been initiated only by the CMD, CIL, thus, entire proceedings stood vitiated. The impugned order dated 24.2.2004, imposing the order of punishment of dismissal from the service, was quashed. However, the appellants were given liberty to initiate fresh inquiry in accordance with law and to conclude the same within a stipulated period. 7. Being aggrieved, the appellants preferred M.A.T. No. 2852 of 2007, however, the Division Bench dismissed the said appeal observing that the disciplinary proceedings had been initiated by an authority not competent to initiate such proceedings and no person other than the CMD, CIL could initiate the same. In fact, the inquiry had been initiated by the OSD, of the ECL and CMD, ECL also did not even approve it, rather he put his signature without making any observation whatsoever. The CMD, ECL was not the Competent Authority. The court had also made an observation that the disciplinary authority had been biased and prejudiced towards the delinquent and proceedings had been initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CMD, CIL not by the CMD of the subsidiary company. A subsequent change/amendment in law would not be applicable so far as the delinquent was concerned. He did not participate in the inquiry on all the dates and did not submit the reply to the second show-cause as he had not been informed in accordance with law and, in such a fact-situation, there was no obligation on his part either to participate in the inquiry or to submit a reply to the second show cause. Once, in the first round of litigation, the High Court had given liberty to the disciplinary authority to proceed de-novo, a fresh charge sheet ought to have been issued to him by the disciplinary authority. In the instant case, proceedings had been initiated only by the OSD of the Company. The CMD, ECL was not the Competent Authority, even otherwise, he had merely signed the order without making any observation whatsoever. The appellants had a grudge against him, hence proceedings were initiated because of malice. The appeal lacks merit and is liable to be dismissed. 10. We have considered the rival submissions made by learned Senior counsel for the appellants and the delinquent-in-person. 11. The chargesheet dated 26.7.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India, being legislative in nature and character, could be given effect to retrospectively. 15. A Constitution Bench of this Court in State of Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors., AIR 1984 SC 161, observed as under:- "The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's & dont's of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today." 16. In K. Nagaraj & Ors. v. State of Andhra Pradesh & Anr. etc., AIR 1985 SC 551, this Court upheld the amendment in the Andhra Pradesh Public Employees (Regulation of Conditions of Service) Ordinance, 1983 by which the age of retirement was reduced from 58 to 55 years holding it was neither arbitrary nor irrational. The court held that as it would apply in future to the existing employees and does not take away the rights of the persons who have alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panies Chairman cum Managing Director, Coal India Ltd. All penalties Board of Directors Coal India Ltd. (b) .................... (c) .................... 3. (a) Officers in grade E-1 to M-3 posted in Subsidiary Companies CMD of the concerned Subsidiary Company All penalties except those under Rule 27.1(iii)(b) to 27.1(iii)(d) Chairmancum Managing Director, CIL (b) .............. (c) ............... The jurisdiction of the Disciplinary Authority shall be determined with reference to the Company/Unit where the alleged misconduct was conducted. 20. This Court while interpreting the provisions of Article 311(1) of the Constitution of India, has consistently held that as per the requirement of the said provisions, a person holding a civil post under the State cannot be dismissed or removed from service by an authority subordinate to that by which he was appointed. "However, that Article does not in terms require that the authority empowered under the provision to dismiss or remove an official, should itself initiate or cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Board of Directors, CIL. (See: Transport and Dock Workers Union & Ors. v. Mumbai Port Trust & Anr., (2011) 2 SCC 575). Unfortunately, both the parties proceeded with the case without any sense of responsibility, as subsequent to disposal of the writ petition and appeal by the High Court, the statutory appeal filed by the delinquent after 15 months of imposition of punishment was entertained, though the limitation prescribed under the Rules 1978 is only 30 days and appeal has been dismissed on merit without dealing with the issue of limitation. It clearly shows that both sides considered the litigation as a luxury and that the appellants have been wasting public time and money without taking the matter seriously. 24. The Statutory rules clearly stipulate that the enquiry could be initiated either by the CMD, CIL or by the CMD of the Subsidiary Company. In the first round of litigation, the learned Single Judge of the High Court vide judgment and order dated 22.2.2001 after quashing the orders impugned therein, had given liberty to the appellants to start the proceedings de-novo giving adequate opportunity to the delinquent. The Division Bench vide judgment and order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the stage subsequent to the issuance of the charge sheet. The law requires that the disciplinary authority should pass some positive order taking into consideration the material on record. 29. This Court has repeatedly held that an order of dismissal from service passed against a delinquent employee after holding him guilty of misconduct may be an administrative order, nevertheless proceedings held against such a public servant under the Statutory Rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings. The authority has to give some reason, which may be very brief, for initiation of the inquiry and conclusion thereof. It has to pass a speaking order and cannot be an ipse dixit either of the inquiry officer or the authority. (Vide Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Anil Kumar v. Presiding Officer & Ors., AIR 1985 SC 1121; and Union of India & Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541). Thus, the above referred to order could not be sufficient to initiate any disciplinary proceedings. 30. It is a settled legal proposition that if initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other, not because of any special status.... but because otherwise, functioning effectively would become difficult in a democracy." 36. In M. Sankaranarayanan, IAS v. State of Karnataka & Ors., AIR 1993 SC 763, this Court observed that the Court may "draw a reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture." 37. There has to be a very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition, as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material. (Vide: M/s. Sukhwinder Pal Bipan Kumar & Ors. v. State of Punjab & Ors., AIR 1982 SC 65; Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ryana & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992 SC 604). 42. Therefore, the finding of bias i.e. predetermination of the disciplinary authority to punish the delinquent is set aside holding that it is totally perverse being based on no evidence. 43. In the facts and circumstances of the case, the appeal stands allowed to the extent explained hereinabove. The finding recorded by the High Court regarding malice is unwarranted and hereby set aside. Further, the finding that CMD, ECL was not competent to initiate the proceeding is also not sustainable in the eyes of law and thus, hereby set aside. It is open to the appellants to initiate fresh disciplinary proceedings, i.e., issuing a fresh chargesheet by the competent authority as per the Rules 1978 and concluding the proceedings under all circumstances within a period of 6 months from today. It is made clear that in case the delinquent does not participate or co-operate in the inquiry, the inquiry officer, may proceed ex-parte passing such an order recording reasons. 44. In the last, the delinquent has submitted that this Court must issue directions for his reinstatement and payment of arrears of salary till date. Shri Bandopadhy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is re-instated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of re-instatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide: U.P.SRTC v. Mitthu Singh, AIR 2006 SCC 3018; Secy., Akola Taluka Education Society & Anr. v. Shivaji & Ors., (2007) 9 SCC 564; and Managing Director, Balasaheb Desai Sahakari S.K. Limited v. Kashinath Ganapati Kambale, (2009) 2 SCC 288). 48. In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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