REPORTABLE

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

J U D G M E N T

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.  

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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.

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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.

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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.

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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

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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.  

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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

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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).

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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. (ASOK KUAMR GANGULY)

New Delhi, April 16, 2009

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