2011 Supreme(SC) 372

2011 (3) Supreme 524
SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S. Chauhan, JJ.
Chairman-Cum-M.D., Coal India Ltd., & Ors. — Appellants
versus
Ananta Saha & Ors. — Respondents
Civil Appeal No. 2958 of 2011
(Arising out of SLP (C) NO. 1100 OF 2009)
Decided on : 6-4-2011

IMPORTANT POINTS
Statutory service rules governing service conditions may be amended unilaterally and with retrospective effect.
It is not required that the competent authority should itself initiate or conduct enquiry proceeding.
Competent authority must apply his mind and pass a positive order giving reasons.
If initiation of disciplinary proceeding is vitiated, subsequent proceedings would not sanctify the same.

Headnote:(a) Service Law – Service conditions – 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 – These alterations/ amendments can be given retrospective effect. (Para 13)

        AIR 1967 SC 1889; AIR 1973 SC 1146; AIR 1975 SC 1116; (1984) 3 SCC 281; AIR 1984 SC 161; AIR 1985 SC 551; AIR 1999 SC 2012; JT (2010) 13 SC 610; AIR 2002 SC 1223; AIR 1981 SC 711; (1999) 1 SCC 475; (1999) 7 SCC 314; (2004) 1 SCC 663 – Relied upon

        (b) Service Law – Disciplinary proceeding – Initiation – Article 311 of the Constitution in terms does not require that the competent authority should itself initiate or conduct enquiry proceeding. (Para 20)

        AIR 1982 SC 1407; (2003) 4 SCC 670 – Relied upon

        (c) Coal India Executives’ Conduct Discipline and Appeal Rules, 1978 – Rule 27, Schedule – Competent authority – In case of an officer in E-2 Grade posted in Subsidiary Company, disciplinary proceedings could be initiated by the CMD, CIL or by the CMD of the concerned Subsidiary Company, i.e., ECL. (Para 21)

        (d) General Clauses Act, 1897 – Section 27 r/w Section 114 Illustration (f), Evidence Act, 1872 – There is a presumption in law that the addressee has received the materials sent by registered post. (Para 22)

        AIR 2010 SC 3817 – Relied upon

        (e) Service Law – Disciplinary proceeding – Ex parte enquiry – Delinquent not participating in the enquiry in spite of notice – Ex parte enquiry held – No illegality. (Para 23)

        AIR 2010 SC 3131 – Relied upon

        (f) Constitution of India – Article 226 – Delinquent asserting that disciplinary proceeding was initiated by an incompetent authority – Challenging the same after conclusion of the proceedings, and after 15 months of imposition of punishment as against limitation of 30 days – Deliberate attempt to linger the litigation – Writ was not maintainable being hit by limitation. (Para 23)

        (2011) 2 SCC 575 – Relied upon

        (g) Service Law – Disciplinary proceeding – Commences only when a charge sheet is issued – High Court giving liberty to employer to initiate de novo enquiry – Authorities continuing with proceeding on the basis of old charge-sheet without issuing fresh charge-sheet – Not permissible. (Para 26)

        AIR 1991 SC 2010; (2007) 6 SCC 694 – Relied upon

        (h) Service Law – Disciplinary proceeding – Competent authority merely putting his signature on the note prepared by OSD – Such proceeding being quasi judicial in nature, disciplinary authority has to apply his mind and pass a positive order giving reasons – Proceeding vitiated. (Para 29)

        AIR 1963 SC 395; AIR 1964 SC 364; AIR 1985 SC 1121; (2009) 2 SCC 541 – Relied upon

        (i) Judicial Review – If initiation of disciplinary proceeding is vitiated, subsequent proceedings would not sanctify the same – Maxim sublato fundamento cadit opus applies. (Para 30)

        AIR 2000 SC 3243; (2001) 10 SCC 191; AIR 2010 SC 3745 – Relied upon

        (j) Service Law – Disciplinary proceeding – Mala fide – In absence of proper pleadings and materials on record prima facie establishing the allegation of mala fide, such allegations would not be investigated by courts – Burden of establishing mala fide lies heavily on the person making it. (Para 34)

        AIR 1977 SC 567; AIR 1974 SC 555; AIR 1993 SC 763; AIR 1982 SC 65; AIR 1987 SC 294; (2001) 5 SCC 323; (2001) 2 SCC 330; (2003) 2 SCC 132; AIR 1987 SC 877; AIR 1992 SC 604 – Relied upon

        (k) Service Law – Disciplinary proceeding – Punishment – Court setting aside punishment of dismissal and giving liberty of fresh enquiry – Result of such enquiry would related back to the date of imposition of punishment – In such a case delinquent is to be reinstated and may be put under suspension – The question of back wages etc. is to be determined by the disciplinary authority. (Paras 45 to 47)

        AIR 1997 SC 637; AIR 1997 SC 2661; (1999) 7 SCC 645; AIR 1994 SC 1074; AIR 2009 SC 161; AIR 2006 SC 3018; (2007) 9 SCC 564; (2009) 2 SCC 288 – Relied upon

       Facts of the case:

        This case relates to disciplinary proceeding and punishment of dismissal which was quashed by the High Court.

        The controversy is as to who is the competent authority to initiate disciplinary proceeding.

       Finding of the Court:

        Initiation of the de novo enquiry was not in accordance with principles of disciplinary proceedings and hence vitiated. Authorities given liberty to conduct fresh enquiry.

       Result : Appeal partly allowed.