Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 10812 OF 2018
[Arising out of SLP (C) No.8774 of 2018]
S. Mahesh .. Appellant(s)
Versus
The Chairman Cum Managing
Director, Neyveli Lignite
Corporation Ltd. Neyveli
Tamil Nadu & Ors. .. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and order dated 05.03.2018 passed by the High
Court of Judicature at Madras in W.A. No. 273 of
Signature Not Verified
2017 whereby the Division Bench of the High Court
Digitally signed by
ANITA MALHOTRA
Date: 2018.12.24
16:29:08 IST
Reason:
set aside the order dated 07.11.2016 passed by the
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learned Single Judge in W.P. No. 15312/2010 and
allowed the writ appeal filed by the respondent
herein.
3. The controversy involved in the appeal is
short. However, few relevant facts herein below need
mention to appreciate the controversy.
4. The appellant (employee) was the writ
petitioner whereas the respondent herein (employer)
was the respondent in the writ petition filed by the
appellant in the High Court of Madras against the
respondent out of which this appeal arises.
5. The respondent herein is the Government
Company known as Neyveli Lignite Corporation Ltd.
It is mainly engaged in the business of manufacture
and sale of minerals (lignite). It has an office and
business activity in South Arcot (Tamil Nadu).
6. The respondent (hereinafter referred to as “the
Corporation”) being a fully owned Government
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Company is a “State” within the meaning of Article
12 of the Constitution of India and is thus amenable
to the writ jurisdiction under Article 226/227 of the
Constitution of India.
7. Pursuant to advertisement issued by the
Corporation for the appointment of “Diploma
Engineer Trainee Grade II (Electrical)”, the appellant
was one of the candidates who applied for the said
post. The appellant was interviewed by the
Corporation and selected for the said post. The
Corporation on 28.01.1988 accordingly issued an
appointment letter to the appellant. (AnnexureP1).
8. In terms of the appointment letter, the
appellant was initially appointed on probation for a
period of two years as Trainee and on its successful
completion, was to be appointed on regular basis as
Engineering Supervisor (Electrical) on probation for
a period of one year and then to be absorbed as a
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regular employee. The appellant was also required
to execute Bond for a particular period.
9. At the time of the interview and the
appointment, the appellant had produced
photocopy of his Scheduled Tribe Certificate to the
Corporation and had sought time to produce its
original. The Corporation granted the indulgence to
the appellant for producing his original Scheduled
Tribe Certificate.
10. The appellant on 03.03.1988, however, sent a
letter (Annexure R3) to the Corporation informing
them that he belongs a community known as
" Konda Reddi " which is a backward (ST)
community. He said that he had approached the
concerned Revenue Authorities for obtaining caste
certificate in the prescribed form so as to enable
him to submit it to the Corporation but the Revenue
Authorities informed him that the Department has
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stopped issuing any such certificate. The appellant,
therefore, expressed his inability to produce the
original Scheduled Tribe Certificate and requested
the Corporation to treat him as a candidate
belonging to the "General Category" instead of
"Reserved Category" in selection process.
11. The Corporation, on receipt of the aforesaid
letter, issued a posting order no. 1416/P&A/VI
2/883 dated 02.05.1988 to the appellant and
asked him to report for duty. The appellant was also
allotted quarter in general category as a part of his
service condition. The appellant accordingly joined
his duty on 02.05.1988.
12. It was almost after four years of his joining i.e
on 24.05.1993, the Corporation served a memo to
the appellant stating therein that appellant had
submitted false community certificate at the time of
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joining and therefore why disciplinary action be not
taken against him for filing such certificate.
13. It is not in dispute that the Corporation
though issued this memo to the appellant but did
not pursue the matter. On the other hand, the
appellant was promoted to the rank of Junior
Engineer Grade I with effect from 01.06.1993 vide
order dated 16.12.1993. The appellant accordingly
started working on the promotional post.
14. On 11.08.1995, the Corporation issued second
memo to the appellant reiterating the same charge
for which the first memo was issued. The appellant
filed his reply and reiterated his stand which he had
taken in his letter dated 03.03.1988.
15. The Corporation then conducted a
Departmental Enquiry and recorded the statements
of the Corporation’s officials wherein the officials
admitted that the appellant had sent a letter dated
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03.03.1988 expressing therein his inability to
produce the original caste certificate and further
requesting the Corporation to treat him as general
candidate instead of reserved candidate. They also
admitted that the appellant's request was accepted
by DGM/P&A.
16. Despite this, the Corporation concluded in the
enquiry that the charge leveled against the
appellant has been proved. The appellant was
accordingly awarded a punishment of " reduction of
rank to a lower stage by two stages in his time scale
for a period of 2 years with cumulative effect ". The
Corporation also ordered that henceforth the
appellant be considered as general category
candidate and that he would not be allowed to avail
any benefits which are extended to the reserved
category candidates. The appellant felt aggrieved
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and filed Departmental Appeal. It was, however,
dismissed.
17. After three years i.e. on 20.09.2000, the
Corporation for the third time issued a memo again
asking the appellant to produce his community
certificate in original for its verification. The
appellant replied to the said memo reiterating his
earlier stand saying that he had already informed
vide his letter dated 03.03.1988 and in the enquiry
proceedings to the Corporation that it was not
possible to produce the original certificate for the
reasons mentioned therein. The appellant further
said that he never took any benefit of reserved
candidate in the service because his request to treat
him as general candidate was accepted by the
Corporation.
18. The Corporation did not stop here and lodged
an FIR against the appellant on 30.07.2001 in PS
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Neyveli Town (Crime No.219) for filing false caste
certificate. On 04.11.2003, the Police Authorities
submitted a report that there was no case made out
against the appellant in the FIR. On 15.07.2008,
the Magistrate in RC No.56/2008, on perusal of the
FIR and final report of the Police Authorities, closed
the case against the appellant.
19. After two years, the Corporation again renewed
their efforts and this time, its director invoked the
powers under Rule 30 of the NLC Employees
(Control and Appeal) Rules (hereinafter referred to
as “the Rules”) and by order dated 07.07.2010
substituted the punishment imposed on the
appellant vide order dated 30.8.1997 to that of
declaring appellant's appointment to be null and
void.
20. The appellant, felt aggrieved, filed writ petition
(W.P. No.15312/2010) in the Madras High Court
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questioning therein the legality and correctness of
the order dated 07.07.2010. The Corporation
contested the writ petition.
21. By order dated 07.11.2016, the learned Single
Judge allowed the appellant's writ petition and
quashed the order dated 07.07.2010. Feeling
aggrieved of the order passed by the learned Single
Judge, the Corporation filed intra court appeal
before the Division Bench.
22. By impugned order, the Division Bench
allowed the Corporation’s appeal, and while setting
aside the order passed by the learned Single Judge,
dismissed the appellant's writ petition and upheld
the order dated 07.07.2010 by which the appellant's
appointment was held as null and void. It is against
this order, the writ petitioner (appellant herein) felt
aggrieved and filed the present special leave to
appeal in this Court.
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23. Heard Ms. V. Mohana, learned counsel for the
appellant and Mr. Anil Nag, learned counsel for the
respondent(s).
24. Having heard the learned counsel for the
parties and on perusal of the written submissions
filed by the parties, we are constrained to allow the
appeal and while setting aside of the impugned
order, allow the appellant's writ petition and restore
the order of the Single Judge.
25. In our considered opinion, the entire action of
the Corporation starting from issuance of second
charge memo dated 11.08.1995 and ending by
passing the order dated 07.07.2010 is arbitrary,
unreasonable, and exercise of the powers
mala fide
by the Corporation against the appellant and hence
the same is not sustainable in law.
26. In any event, the order dated 07.07.2010
which is subject matter of this appeal and with
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which we are really concerned in this appeal is
wholly arbitrary, unreasonable and is not legally
sustainable. This we say for following reasons.
27. First, the appellant at the first available
opportunity and before joining the duties had sent a
letter on 03.03.1988 of his own to the Corporation
informing therein that it was not possible for him to
produce the original caste certificate because the
Revenue Authorities had declined to issue the
original caste certificate to him.
28. Not only that, the appellant further on his
own requested the Corporation not to treat him as
" reserved candidate " but treat him as " general
candidate ". In this way, the appellant, in our
opinion, did not suppress any information relating
to his caste certificate from the Corporation.
29. Second, the Corporation, in these
circumstances, had three options; first, not to
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appoint the appellant which the Corporation did not
opt; Second, to grant some more time to produce
the caste certificate or any other material to prove
the appellant’s caste which again the Corporation
did not opt and the third, to condone the lapse in
filing the caste certificate and proceed to consider
the appellant's case treating him as a candidate
belonging to the general category for selection
purpose which the Corporation opted.
30. Third, the Corporation by their express
conduct having followed the third option and
condoned the lapse by asking the appellant to join
the duties, which the appellant did, and later
further promoting him to the next higher grade, the
issue relating to caste certificate lost its
significance.
31. Fourth, in the light of aforementioned
reasons, the Corporation, in our opinion, had no
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right to hold any Departmental Enquiry in relation
to the issue of appellant's caste certificate because
they condoned the issue of caste certificate by
allowing the appellant to join the duties and later by
promoting him to the next higher grade.
32. Assuming, however, that the Corporation
could still probe the issue in relation to the
appellant's caste certificate after allowing him to
join, the Corporation having held a Departmental
Enquiry and imposing the punishment on the
appellant of “ reduction of his rank to a lower stage
by two stages in his time scale for a period of 2
years with cumulative effect” by order dated
30.08.1997, the issue of caste certificate attained
finality in all respect.
33. The Corporation had thereafter no power to
raise the issue of caste certificate again in any form
against the appellant. In other words, the issue of
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caste certificate did not survive for any more
consideration between the parties inasmuch as it
was not a live issue between the parties.
34. Fifth, assuming that the higher authority had
the power to enhance the punishment imposed on
the appellant by taking recourse to powers under
Rule 30, such power, in our view, could be exercised
by the authorities within 90 days from the date of
the order of punishment.
35. In this case, the punishment order was
passed on 30.08.1997 whereas the higher authority
exercised his power under Rule 30 on 07.07.2010
by which the punishment order dated 30.08.1997
was cancelled and was substituted by an order
declaring the appellant's appointment as null and
void. This order was passed beyond a period of 30
days as provided in Rule 30 (3) which in clear terms
provides that " no order enhancing the punishment
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under this rule shall be made after a period of 90
days from the date on which the original order of
punishment was served on the employee charged ".
36. In other words, the higher authority could
pass the order under Rule 30 for revoking the
original order of punishment dated 30.08.1997 as
being bad and substituting it with another order
declaring the appellant's appointment as null and
void within 90 days from the date of punishment
order i.e, it could be passed on or before 30.11.1997
but not beyond this date.
37. Since in this case, the order was passed
almost after 13 years from the date of passing of the
original punishment order, and hence on the face, it
was bad in law.
38. In the light of aforementioned reasons, we are
of the opinion that in whatever way the question is
examined, the entire action of the Corporation and
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in particular the order dated 07.07.2010 which is
subject matter of this appeal is found to be wholly
arbitrary, unreasonable and, therefore, it is held
legally unsustainable.
39. The Single Judge, therefore, rightly set aside
the order impugned in the writ petition whereas the
Division Bench was not right in setting aside the
order of the Single Judge.
40. We cannot, therefore, agree with the reasoning
and the conclusion of the Division Bench but are
inclined to concur with the reasoning and the
conclusion arrived at by the learned Single Judge in
addition to our own reasoning given above.
41. In view of the foregoing discussion, the appeal
succeeds and is hereby allowed. The impugned
order passed by the Division Bench is set aside and
the order passed by the Single Judge (Writ Court) is
restored.
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42. As a consequence, order dated 07.07.2010
passed by the Director (Power) of the Corporation
which set aside the order of punishment dated
30.08.1997 and in its place substituted the order by
declaring the appellant's appointment void ab initio
is hereby quashed.
………………………………..J
(ABHAY MANOHAR SAPRE)
…..………………………………J.
(INDU MALHOTRA)
New Delhi,
October 29, 2018
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