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TMI Blog2003 (2) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... of two employees, the present appellant and one Mr. V.K. Talwar. It was pointed out in the order of dismissal that it would not be practicable to hold an enquiry before directing dismissal. The respondent employee, on the other hand, alleged that the order of dismissal was the outcome of victimization. He took a stand in the writ petition filed before the Delhi High Court that because of union activities, he had become an eyesore of the management, and the order of dismissal without holding an enquiry was violative of law and was at variance with the requirements of Article 311(2) of the Constitution of India. 1950 (in short 'the Constitution'). Learned Single Judge was of the view that in a given case, enquiry can be dispensed with; but the case at hand was not of that nature. It was further held that the protection under Article 311(2) was available and non- observance of the procedure vitiated the order of dismissal. The matter was challenged in Letter Patents Appeal before the Division Bench of the Delhi High Court by the present appellant. It was submitted that there was no scope for judicial review of the order dispensing with enquiry. The order of dismissal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... putation of the employer as the incident took place in the presence of valued customers, some of whom were foreign customers. If the High Court felt that the dismissal was untenable in the absence of enquiry at the most it could have directed enquiry before dismissal order was effectuated. The dismissal order could not have, in any event, been set aside without any such direction. These aspects have also to be considered along with the plea relating to loss of confidence. In response, learned counsel for the respondent, employee submitted that the facts are tellate and the background highlighted by the respondent in the writ petition clearly shows that management was bent upon dismissing him for his union activities. That was sufficient to prove mala fides and even if no particular person was impleaded, the management acted in unison through some, of its officers for his dismissal from employment. It was submitted that the High Court was correct in holding that the order of dismissal was illegal. It was submitted that though there was no assertion in the writ petition that the alleged incident did not take place, the same was on account of the fact that the employee was not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d violent manner in which employee were threatened leads to an irresistible conclusion that witnesses would not have come forward to give evidence during the course of enquiry. Such a conclusion would not be a valid ground for dispensing with enquiry in all cases. If there is material with the concerned authority that there is likelihood of witnesses not coming forward due to threats, coercion, undue influence etc. certainly it would, be a germane ground for dispensing with enquiry, and to hold that it would not be possible to hold a fair enquiry. Except making a bald statement that charged employee can indulge in intimidating and violent acts persons would not come forward, there is no other material. On the basis of a presumptuous conclusion, the concerned authority should not have dispensed with enquiry. As indicated above, if there exists material and basis for coming to a conclusions, same has to be specifically dealt with. If such material exists certainly it would be a valid ground for dispensing with enquiry. That is an aspect which relates to impracticability of holding an enquiry. It is not in dispute that under the Indian Railway Construction Co. Ltd. (Conduct, Discip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he exercise of the power is manifestly arbitrary See State of U.P. and Ors. v. Renusagar Power Co. and Ors., AIR [1988] SC 1737. At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work Judicial Review of Administrative Action 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selves as incompetent to investigate, beyond an initial decision as to whether the government's claim is bonafide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in council of Civil Service Unions v. Minister for the Civil Service this is doubtful. Lords Diplock, Seaman and Roskili appeared to agree that there is no general distinction between poweres, based upon whether their source is statutory or Prerogative but that judicial review can be limited by the subject matter of a particular power, in that case national security. Many prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney General's prerogative to decide whether to institute legal proceedings on behalf of the public interest. (Also see Padfield v. Minister of Agriculture, Fisheries and Food, LR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bonafide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view. The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in CCSU case as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in that a case as follows: ..........Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a person apparently acting on the legitimate exercise of power has, in fact, been acting malafide in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (See S. Pratap Singh v. The State of Punjab, [1964] 4 SCR 733). It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility. As noted by this Court in R.P. Royappa v. State of Tamil Nadu and Anr., AIR (1974) SC 555, Courts would 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 administratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his context, reference may be made to the following observations of Lopes C.J. In Perce v. Foster, (1866) 17 QBD 536, p. 542): If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant. This view was re-iterated by a three-Judge Bench of this Court in Union of India and Ors. v. K.K. Dhawan, AIR (1993) SC 1478. Here, the alleged acts have not been disbelieved by the High Court. They are prima facie acts of misconduct. Therefore, the employer can legitimately raise a plea of losing confidence on the employee, warranting his non-continuance in the employment. The time gap is another significant factor. Question then would be how the conflicting interests can be best balanced. By an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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