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2006(3) Supreme 797
SUPREME COURT OF INDIA
(From Bombay High Court)
Mrs. Ruma Pal, Dalveer Bhandari and Markandey Katju, JJ.
Maharashtra State Mining Corpn.—Appellant
versus
Sunil—Respondent
Civil Appeal No. 2228 of 2006
(Arising out of SLP (Civil) No. 20513 of 2005)
Decided on 24-4-2006
Counsel for the Parties :
For the Appellant : Manish Pitale, Chander Shekhar Ashri, Advocates.
For the Respondent : A.K. Sanghi, Advocate.
Held : The High Court was right when it held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act cannot be subsequently ‘rectified’ by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ‘Ratihabitio priori mandato aequiparatur’ namely ‘a subsequent ratification of an act is equivalent to a prior authority to perform such act’. Therefore ratification assumes an invalid act which is retrospectively validated.(Para 7)
In the present case, the Managing Director’s order dismissing the respondent from the service was admittedly ratified by the Board of Directors on 20th February 1991, and the Board of Directors unquestionably had the power to terminate the services of the respondent. On the basis of the authorities noted, it must follow that since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it.(Para 11)
JUDGMENT
Leave granted.
2. The respondent was employed by the appellant. On the basis that the respondent had indulged in various activities of misconduct, he was placed under suspension pending disciplinary enquiry. The respondent was served with a charge-sheet which was issued by the Managing Director of the Appellant. An Enquiry Officer was appointed. After holding the enquiry, a report was submitted by the Enquiry Officer. According to the report, of the eight charges, four were proved, one partly proved and three not proved. The Managing Director concurred with the Enquiry Officer’s findings and issued a show cause notice to the appellant why the punishment of dismissal of service should not be imposed upon him. No reply appears to have been given to this notice and the respondent was dismissed from service on 25th January, 1991. The order of dismissal was also passed by the Managing Director. Challenging the order of dismissal, the respondent filed a writ petition before the Nagpur Bench of the Bombay High Court.
3. While the writ petition was pending, the Board of Directors of the appellant Corporation passed a resolution ratifying the action taken by the Managing Director in respect of the disciplinary action against the respondent and also empowering the Managing Director to take decisions in respect of the officers and staff in the grade of pay the maximum of which did not exceed Rs. 4,700/- p.m. prior to this resolution the Managing Director had powers only in respect of those posts where the maximum pay did not exceed Rs. 1,800/- p.m. Admittedly, the respondent at the relevant time was drawing more than Rs. 1,800/- p.m. Therefore when the Managing Director issued the order dismissing the respondent, he was incompetent to do so.
4. In the writ petition the respondent had taken several grounds for challenging the dismissal order for example, that the relevant documents were not supplied, that he was not allowed to cross-examine the witnesses, that he was not allowed to engage a lawyer etc. However, a perusal of paragraph 6 of the impugned judgment of the High Court shows that the writ petitioner did not press any of the grounds. The only ground which was pressed was that the order of dismissal was passed by the Managing Director of the appellant, who had no authority or power to do so, as the same was vested in the Board of Directors of the appellant. In view of the fact that the respondent had not pressed these grounds before the High Court, we cannot allow him to urge these points before us. The only issue which the High Court was called upon to decide was whether the removal of the respondent from service was by a competent authority.
5. The High Court allowed the writ petition holding that the Managing Director was not competent to terminate the respondent’s services as on the date of the passing of the order of termination and therefore the order of dismissal was valid. The High Court was also of the view that this defect could not be rectified subsequently by the resolution of the Board of Directors. The High Court accordingly set aside the order of termination. Since the respondent had already retired from service, the appellant was directed to reinstate the respondent notionally with effect from the date of termination in the same post and pay salaries up to the date of superannuation and to pay all retrial benefits after the date of superannuation.
6. Before us learned counsel appearing on behalf of the appellant has submitted that the High Court’s decision was contrary to the decisions of this Court in Parmeshwari Prasad Gupta v. The Union of India (1973) 2 SCC 543 and High Court of Judicature for Rajasthan V. P.P. Singh and Anr. (2003) 4 SCC 239. The respondent on the other hand submitted that the resolution of the Board was subsequent to the order of dismissal and, therefore, could not operate retrospectively. The respondent relied upon the decision in Krishna Kumar V. Divisional Assistant Electrical Engineer
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