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CASE NO.: Appeal (civil)  2228 of 2006

PETITIONER: Maharashtra State Mining Corporation

RESPONDENT: Sunil S/o Pundikaro Pathak

DATE OF JUDGMENT: 24/04/2006

BENCH: Ruma Pal, Dalveer Bhandari & Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of SLP (Civil) No.20513 of 2005)   Leave granted. 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.  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. 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

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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.  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 invalid.  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.   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 (1979) 4 SCC 289 in support of this  contention.         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.  In Parmeshwari Prasad Gupta, the services of the  General Manager of a company had been terminated by  the Chairman of the Board of Directors pursuant to a  resolution taken by the Board at a meeting.   It was not  disputed that that meeting had been improperly held and  consequently the resolution passed terminating the  services of the General Manager was invalid.  However, a  subsequent meeting had been held by the Board of  Directors affirming the earlier resolution.  The  subsequent meeting had been properly convened.  The  Court held: "Even if it be assumed that  the  telegram and the letter terminating  the services of the appellant by the  Chairman was in pursuance to the  invalid resolution of the Board of  Directors passed on December 16,  1953 to terminate his services, it  would not follow that the action of  the Chairman could not be ratified  in a regularly convened meeting of  the Board of Directors.  The point is

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that even assuming that the  Chairman was not legally authorized  to terminate the services  of the  appellant, he was acting on behalf of  the Company in doing so, because,  he purported to act in pursuance of  the invalid resolution. Therefore, it  was open to a regularly constituted  meeting of the Board of Directors to  ratify that action which, though  unauthorized, was done on behalf of  the Company.  Ratification would  always relate back to the date of the  act ratified and so it must be held  that the services of the appellant  were validly terminated on  December 17, 1953".

       The view expressed has been recently approved in  the case of High Court of Judicature for Rajasthan V.  P.P. Singh (supra) .           The same view has been expressed in several cases  in other jurisdictions.  Thus in Hartman vs. Hornsby       (142 Mo 368, 44 SW 242, 244) it was said "Ratification’"  in the approval by act, word, or conduct, of that which  was attempted (of accomplishment), but which was  improperly or unauthorizedly performed in the first  instance".  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.         Reliance on the decision in Krishna Kumar V.  Divisional Assistant Electrical Engineer (1979) 4 SCC  289  by the respondent is misplaced.  In that case, the  appellant had been appointed by the Chief Electrical  Engineer, the departmental head.  He was removed from  service by the Divisional Assistant Engineer.  The  question for determination was whether the appellant  had been removed from the service by an authority  subordinate to that which had appointed him in violation  of Article 311(1) of the Constitution.  Having considered  the affidavits filed, the Court came to the conclusion that  the appellant had been removed from the service by an  officer who was subordinate in rank to the officer by  whom he was appointed.  The Divisional Assistant  Engineer was, subsequent to the appellant’s  appointment, given the power to make an appointment to  the post which the appellant held.  It was urged by the  respondent State that he, therefore, had the power to  remove all persons holding that post.  The submission  was rejected on the grounds first that the right under  Article 311(1) is vested in an employee on the date of his  appointment and that subsequent authorization of any  subordinate officer would not confer the power on such  subordinate officer to remove the employee.  Secondly,  merely because the subordinate officer was vested with  the power to appoint would not make him equal in rank  with the officer making the appointment.  In other words,

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the Divisional Engineer did not cease to be subordinate  to the Chief Electrical Engineer merely because the  latter’s power to make appointment to the post had been  delegated to him.           That was not a case of ratification but of  empowerment subsequent to the operative date.  The  case is, therefore, distinguishable not only on facts but  also on the law applicable.         In view of the above, this appeal is allowed, the  impugned judgment and order of the High Court is  quashed, and the dismissal order dated 25.1.1991 is  upheld. There shall be no order as to costs.