Govt. of A.P. and
Ors. Vs. P.Chandra Mouli & ANR. [2009] INSC 780 (16 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2588 OF 2009 (Arising
out of SLP (C ) No. 26291 of 2005) The Govt. of A.P. & Ors. ...Appellants
Versus P. Chandra Mouli & Anr. ...Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is by the State of Andhra Pradesh questioning the judgment
passed a Division Bench of the Andhra Pradesh High Court allowing the writ
petition filed by the respondent No.1. The proceedings initiated by the
Director General of Police (in short the `DGP')placing respondent No. 1 under
suspension pending conclusion of disciplinary proceedings were quashed. Cost of
Rs.10,000/- was imposed to be paid by the DGP and the Commissioner of Police.
3.
Background
facts in a nutshell are as follows:
On 17.1.2005 the then
Commissioner of Police, Hydrabad, respondent No.2 herein had relieved the
respondent No.1 from the post of Assistant Commissioner of Police, Banjara
Hills, Hyderabad and directed him to report in the office of DGP.
On 26.1.2005
Respondent No. 1 filed O.A. bearing No. 413 of 2005 before the A.P.
Administrative Tribunal, Hyderabad (in short the `Tribunal') in which the
Director General of Police, Commissioner of Police and Dy. Commissioner of
Police, Hyderabad were pleaded as respondents. The present respondent No.2 was
not impleaded.
On 1.2.2005 the
Director General Police placed the respondent No.1 under suspension pending
departmental proceedings under Rule 8 (1)(a) of the A.P. Civil Services
(Classification, Control and Appeal) Rules 1991 (in short the `Rules') basing
on the report of Dy.
Commissioner of
Police, West Zone, dated 24.1.2005 which was forwarded to the Director General
of Police by the then Commissioner of Police.
On 03.02.1005 the
Tribunal issued notice in the above O.A. No.413 of 2005, filed by the
Respondent no.1 herein.
On 10.2.2005 the
Respondent No.1 had also filed a separate O.A. No.589/ 2005 before the Tribunal
to which the State of Andhra Pradesh, the respondent No.2 by name was impleaded
as respondents besides the Director General of Police, Commissioner of Police
and Dy. Commissioner of Police, West Zone were also impleaded as respondents.
On 24.02.2005
Tribunal disposed of O.A. No. 589 of 2005 filed by the Respondent No.1
directing him to avail the alternative remedy of appeal against the order dated
1.2.2005 passed by the Director General of Police under Rule 33 of the Rules,
before invoking the jurisdiction of the Tribunal under Section 14 of the
Administrative Tribunals Act (in short the `Act') as it is mandatory under
Section 20 thereof.
On 02.03.2005 the
Respondent No.1 herein had filed a writ of Mandamus in W.P. No. 4247 of 2005 in
the High Court of Andhra Pradesh against the order dated 24.2.2005 in O.A. No.
589 of 2005 in which notice was issued only to the Director General of Police.
On 7.3.2005 in reply
to the said show cause notice, the Director General of Police filed a detailed
counter affidavit on 7.3.2005.
On 24.3.2005 High
Court by its impugned judgment and order has allowed the Writ Petition No. 4247
of 2005 filed by the Ist respondent for a Writ of Mandamus by going into the
merits of the case and setting aside the order of suspension dated 1.2.2005
passed by the Director General of Police and imposed Rs.10,000/- as costs on
the Director General of Police and Commissioner of Police holding that it was
malafide. According to appellants the order was passed without even issuing
notice and providing an opportunity of hearing to other respondents i.e.
Commissioner of Police and Dy. Commissioner of Police, West Zone, Hyderabad.
4.
According
to learned counsel for the appellant-State the order passed by the High Court
is clearly unsustainable. The suspension order was in order and without any
foundation, malafide has been concluded.
5.
Learned
counsel for the respondent No.1 supported the judgment of the High Court.
6.
It
is to be noted that no notice was issued to the DGP to have any say in the
matter. Only the Commissioner of Police was made respondent and the DGP was
also not impleaded by name but by official designation. The writ petition was
allowed on the ground that the order of suspension was not bonafide and was
tainted with inference of malafides. It appears that a charge memo was issued
for taking disciplinary action and the respondent No.1 has submitted a reply
that a suspension order containing some allegation has been set aside by the
High Court and therefore there is nothing further to be done.
7.
It
further appears that the respondent No.1 challenged the charge memo dated
6.2.2005 before the Andhra Pradesh Administrative Tribunal. The same was
dismissed for default on 13.9.2008. On 31.3.2008 respondent no.1 has been
allowed to retire without prejudice to the pendency of the disciplinary
proceedings.
8.
The
High Court ought to have noticed that this was not a case where alternative
remedy could be avoided. It was necessary, as rightly observed by the Tribunal
in the first occasion, for respondent No.1 to avail alternative remedy. Further
the High Court has considered the plea of malafides in writ petition. The
Tribunal had not considered the case on merit. It had only directed the
respondent No.1 to avail Statutory remedy. That being so it was certainly not
open to the High Court to go into a detail examination of the alleged malafide.
9.
In
Union of India v. Ashok Kumar & Ors. [2005(8) SCC 760] it was inter alia
noted as follows:
"Doubtless, he
who seeks to invalidate or nullify any act or order must establish the charge
of bad faith, an abuse or a misuse by the authority of its powers. While the
indirect motive or purpose, or bad faith or personal ill-will is not to be held
established except on clear proof thereof, it is obviously difficult to
establish the state of a man's mind, for that is what the employee has to
establish in this case, though this may sometimes be done. The difficulty is
not lessened when one has to establish that a person apparently acting on the
legitimate exercise of power has, in fact, been acting mala fide in the sense
of pursuing an illegitimate 6 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. (S. Pratap Singh v. State of Punjab
AIR 1964 SC 72). 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 E. P. Royappa v. State of Tamil Nadu and Another (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
administration. (See Indian Railway Construction Co. Ltd. v. Ajay Kumar 2003
(4) SCC 579)."
10.
As
observed by this Court in Gulam Mustafa and Ors. v. The State of Maharashtra
and Ors. (1976 (1) SCC 800) mala fide is the last refuge of a losing litigant.
11.
In
Midley Minerals India Ltd. v. State of Orissa [2004(12) SCC 39] it was inter
alia observed as follows:
"We are unable
to accept the contention of the learned counsel for the 4th respondent that the
action of the State Government was vitiated by mala fides. It is trite that
plea of mala fides has to be specific and demonstrable. Not only this, but the
person against whom the mala fides are alleged must be made a party to the
proceedings and given reasonable opportunity of hearing. We find no such
attempt made in the writ petition before the High Court. At the highest even
putting the most liberal construction on the writ petition, what was alleged
was a contravention of the Rules and, consequently, legal mala fides and
nothing beyond that. The argument of mala fides must therefore fail. Next, it
is urged by the learned counsel for the respondent that it is an elementary
principle of law that an individual shareholder of a company cannot be
considered as equivalent to the company, for company has a distinct legal
personality. Consequently, he contends that the application made by Jitendra
Kumar Lohia could not have enured to the benefit of the appellant company.
According to him, Jitendra Kumar Lohia and the appellant being two distinct
legal entities, the assumption of the State Government, that the application
for renewal of the quarry lease could be treated as a continuation of Jitendra
Kumar Lohia's application, was erroneous and unsustainable in law. We are
unable to accept this contention. We have highlighted as to how the State
Government and Jitendra Kumar Lohia treated the application for renewal of
quarry lease made by Jitendra Kumar Lohia as enduring to the benefit of the
appellant company. If the State Government had treated them to be separate
legal entities, there was no question of imposing a condition on the appellant
that the transfer of the lease was granted on the specific condition that
Jitendra Kumar Lohia and his family members hold the controlling interest in
the company. The facts and circumstances belie this contention of the learned
counsel for the fourth respondent. It cannot be accepted."
12.
Added
to that a writ petition was filed on 2.3.2005 and notice was issued only to the
DGP (not by name but by official designation) but the allegations of malafides
were made in his personal name. The reply was filed on 7.3.2005 and the
impugned order was passed on 24.3.2005.
13.
It
is trite that the power of punishment to an employee is within the discretion
of the employer and ordinarily the courts do not interfere, unless it is found
that either the enquiry, proceedings or punishment is vitiated because of
non-observance of the relevant rules and regulations or principles of natural
justice or denial of reasonable opportunity to defend, etc. or that the
punishment is totally disproportionate to the proved misconduct of an employee.
All these principles have been highlighted in Indian Oil Corpn. Ltd. v. Ashok
Kumar Arora(1997(3) SCC 72) and Lalit Popli v. Canara Bank (2003(3) SCC 583).
14.
It
is not a case where the High Court should have entertained the writ petition
when the Tribunal had disposed of the OA only on the ground of availability of
alternative remedy. The impugned order is set aside. We make it clear that we
have not expressed any opinion on the merits of the case.
15.
The
appeal is allowed with no order as to costs.
...........................................J.
(Dr. ARIJIT PASAYAT)
...........................................J.
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