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CASE NO.:

Appeal (civil) 3059 of 2000

PETITIONER:

PARBODH SAGAR

RESPONDENT:

PUNJAB STATE ELECTRICITY BOARD AND ORS.

DATE OF JUDGMENT: 01/05/2000

BENCH:

S.B. MAJMUDAR & UMESH C. BANERJEE

JUDGMENT:

JUDGMENT

2000 (3) SCR 866

The Judgment of the Court was delivered by BANERJEE, J. Leave granted.

The challenge in this appeal is a judgment of the Punjab & Haryana High

Court rejecting a writ petition against an order of pre mature retirement

on the attainment of the age of 50 years.

The challenge, however, is based on two principle counts - on the first it

is the issue of malafides and on the second it is the uncommunicated

adverse reports: undoubtedly both these counts are rather serious in nature

and success in regard to any one of the counts would entitle the appellant

herein to appropriate relief. Before, however, embarking on to a detail

discussion pertaining to the above-noted twin issues the factual backdrop

ought to be adverted at this juncture.

The petitioner being a Chartered Accountant joined the Respondent

Electricity Board as an Accounts Officer on 15th April, 1988 and was pro-

moted to the post of Senior Accounts Officer retrospectively with effect

from 29th January, 1989 in pursuance of an order passed on 21st August,

1990. The Respondent No. 3 happens to be the Member, Finance and Accounts

while the Respondent No. 4 the Chief Auditor of the Board. It is, however,

on record that both the above named two respondents have retired from the

services of the Board. Whereas it is the grievance of the appellant that

the appellant petitioner has been discriminated against Shri V.K. Verma

under the machination of Shri T.S. Gujral being the Respondent No. 3

herein, the respondents contended that by reason of systematic failure to

discharge his dudes in a manner as was expected of the petitioner and there

being no sign of any improvement at any stage later, question of any

machination on the part of either of the Respondents named above, does not

arise. A specific case as made out by the Appellant is that the petitioner

has been regularly and successively victimised by Respondent-Board at the

behest of Shri T.S. Gujral-Respondent No.3 and shri V.K. Verma-Respondent

No. 4 herein. The petitioner contended that he has been ignored for

promotion first as a Deputy Chief Accounts Officer and thereafter as Chief

Accounts Officer dispite categorical directions issued by courts while

proceeding to allow the writ petition instituted by the petitioner and it

is this state of affairs which cannot but, as contended by the learned

Advocate for the petitioner, be ascribed to be malafide on the part of the

respondents which culminated in an order of premature retirement in April,

1988. The respondent, however, disputed any victimisation or discrimination

and in this perspective placed strong reliance on the Annual Confidential

Roll of the appellant herein. For convenience sake, however, the

Confidential Roll in a tabular form is set out herein below:

Year Remarks Integrity

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01.04.87 to 31.12.87 Good Honest

01.01.88 to 31.03.88 Average Honest

01.04.88 to 19.08.88 Average Honest 22.08.88

to 27.12.88 Average Honest

28.12.88 to 05.05.89 on earned leave

08.05.89 to 06.10.89 Average Good

12.10.89 to 31.03.90 Good Honest

30.04.90 to 31.03.91 Average Honest

I01.04.91 to 31.03.92 Average Honest

01.04.91 to 31.03.92 Average Honest

01.04.92 to 31.03.93 Average Honest

Two increments ordered to be stopped with Future effect vide 0/0

No.61/DSI/D-664 dt. 21.1.94

01.04.93 to 07.07.93 Average Honest

13.07.93 to 31.03.94 Period of Reporting Officers less

than three months/on earned leave.

01.04.94 to 02.10.94 Average Honest 03.10.94

to 31.03.95 Just Average Honest

26.06.95 to 31.12.95 Poor with adverse As he is not

remarks (copy of taking interest in memo No. 3653 dt. the office

work, 20.3.96 Enclosed). he cannot be Said to be honest to His

work/duty

01.01.96 to 31.03.96 Period of Reporting Officer is less

than three months.

The Officer was 'Censured' vide 0/0 No. 85/DS. ln./D-31 dt. 27.11.96.

01.04.96 to 31.03.97 Average Honest.

01.04.97 to 31.03.98 ACR not yet received.

The performance of the petitioner as would appear from Annual Confidential

Reports as above, though originally 'Good' from the year 1987 to 1990 but

it subsequently deteriorated to only 'Average' and 'Just Average' and

lastly in 1995 the petitioner was given the rank of 'Poor': the

Petitioner's counterpart, however, by reason of the factum of securing

better percentages and by reason of their sincere devotion to duty have

been able to obtain the rating as 'Good' and 'Very good' and resultantly

thus, persons having 'Good' and 'Very good' remarks were promoted at the

lime of placement: Question of there being any discrimination, the

respondents contended, thus does not and cannot arise.

Be it place on record that during the course of hearing strenuous

submissions have been made as regards the authority of the person passing

the order of compulsory retirement. It is useful to note that the Punjab

State Electricity Board Services (Pre-mature Retirement) Regulations, 1982

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has been taken recourse by the Board in support of the order impugned

before the High Court since the order itself records that the competent

authority has decided in public interest to order pre-mature retirement in

pursuance of Regulation 3 (i) of the Regulations of 1982. It is on this

count, however, the learned Advocate appearing in support of the Appeal

contended that the Member/Finance & Accounts had no authority whatsoever to

act as the competent authority and to pass the order on the date of the

issuance of the order. Strong reliance was placed on the Office Order dated

19th August, 1997, wherein the Chairman of the State Electricity Board in

exercise of power in terms of Rule 14 of the Punjab State Electricity Board

(Chairman's Powers) Rules 1959 prescribed the functions and duties amongst

the whole time members of the Board including Shri T.S. Gujral. For

convenience sake, the allocation of business of Shri T.S. Gujral, being the

Member/Finance & Accounts be noted hereinbelow:

"Shri T.S. Gujral, Member/Finance & Accounts.

(1) Finance & Budget

(2) Revenue & Expenditure

(3) Accounts & Audit

(4) Banking arrangements.

(5) Loans/borrowings, investments and reserves

(6) Disciplinary Cases of Dy. CAs, Dy. FAs, Senior AOs and AOs.

(7) Appeals of Non-gazetted Estt. i.e. ARAs/IAs/Divisional Ac-

countants/Revenue Superintendent/SAS Accountants etc. whose appointing &

punishing authority is CAO/CA.

(8) Matters relating to Chief Engineer/TA& OI.

Relying on the aforesaid allocation it has been contended in support of the

Appeal that item No. 7 provides for Appeal of Non-Gazetted officers whose

appointing and functioning authority is CAO/CA and since the Ap-pellant is

a Deputy Chief Auditor, question of the Member/Finance & Accounts, passing

an order of premature retirement does not arise. It is needless to note,

however, that the petitioner being at the relevant time, the Deputy Chief

Auditors and since in terms of paragraph 6 of the allocation (as above),

all disciplinary cases of Dy. Chief Auditors, Dy. Finance Advisors, Senior

AOs and AOs ought to be considered by the Member/Finance & Accounts and

Shri T.S. Gujral being the Member/Finance & Accounts, question of any

unauthorised exercise of power does not and cannot arise. It is pertinent

to note that the order itself records ,the consideration of the

petitioner's case by the High Empowered Integrity Committee and the

observations of the Committee are somewhat significant, as such the same

are set out herein below :

"It is observed that during the last 10 years, his ACRs for a short period

of little more than a year viz. 1.4.87 to 31.12.87 (9 months) and 12.10.89

to 31.3.90 (five and half months) are Good and rest are average, or poor.

During the period 26.6.95 to 31.12.95 when his over all rating is poor with

adverse remarks there is another remark in the honesty column "that he is

not taking interest in the office work and as such he cannot be said to be

honest to his work/duty. The officer has not shown any improvement and

instead his confidential record is on the decline.

In addition to above tor the serious omissions and commissions made by the

officer in the performance of his duties, he was issued charge-sheet and or

its finalisation, he was given a punishment of stoppage of two annual

increments with cumulative effect vide office order No. 61/DSS-I/D-664

dated 21.1.94. This punishment has been upheld even by the Punjab & Haryana

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High Court. In another case of misconduct of using derogatory remarks

against his controlling officer, he was issued a letter of advice on

2.1.96. Still in another case of absence from duty without sanction of

leave, he was issued a show cause notice and was censured vide O/O No.

85/DS-1/D-31, dated 27.11.96.

Keeping in view the over all service record/ACR record of the officer which

does not show any improvement during the last 10 years, the HEIC concludes

that it is not in public interest to keep such type of officers in the

service of the Board. The Committee, therefore recommends to prematurely

retire the officer as per PSEB Service (Premature Retirement) Regulations,

1982 as amended from time to time by paying him salary for 3 months in lieu

of the notice period required."

Be it noted that it is on the recommendations of the HCIC that the

appellant was retired pre-maturely in terms of the Regulations of the

Prema-ture Retirement.

On the wake of the aforesaid, question of acting beyond the jurisdiction or

without jurisdiction in so far as the issuance of the order by Shri T.S.

Gujral does not and cannot arise. Paragraph 6 of the allocation amply

authorises Shri Gujral to exercise his powers thereunder and to pass

appropriate orders in regard thereto on the basis of the recommendations of

the High Power Committee. We do not see any infraction of law neither there

is any exercise of power in contravention of rules or regulation or

authorisation and in that view of the matter we are unable to record our

concurrence with the submissions of the Appellant.

Having dealt with the issue of authority as above, it would be conven-ient

to advert to the two specific counts of challenge as noticed above. The

basis of this charge is malice which in common acceptation, means and

implies spite or ill will and the same is a question of fact.

On the score malafides, the High Court has the following to observe:

"Overall record of the petitioner has been considered where it has been

found that almost the entire record of the petitioner for the last ten yeas

was average and there was adverse remarks contained in the confidential

report for the year 1995. Not only that the peti-tioner was issued a charge

sheet and was given a punishment of stoppage of two increments with

cumulative effect, the said order was contested by the petitioner in the

High Court but without any success. In another case of misconduct of using

derogatoiy remarks against the controlling officer, the petitioner was

issued letter of advice and yet in another case of absence from duty

without sanction of leave, the petitioner after issuing a show cause notice

was cen-sured. The impugned order has been passed on 6.4.1998 as even as

per the showing of the petitioner only three reports from 1987 to 1996 are

good. Thereafter it is a steady decline in the work and conduct of the

petitioner. Right from 1991upto 1996-97, he has been shown just average or

below average. In so far as adverse remarks recorded in the confidential

report of the year 1995 are concerned, we would like to mention here that

the petitioner challenged the said remarks by way of writ petition which

earlier came up for disposal before this Court and the same was withdrawn

so as to approach the department. It is clear that the Court had not found

any substance in the contentions raised by the petitioner in the writ

petition and, therefore, the writ petition was withdrawn. The order passed

in the aforesaid writ petition runs thus :-

"Learned counsel for the petitioner states that this writ petition may be

dismissed as withdrawn with liberty to the petitioner to approach the

authority on administrative side. Permitted to do so. Writ Petition is

dismissed as withdrawn."

The petitioner thereafter filed representation/appeal but the same were

rejected by the Board on 12.8.1997 (Annexure P-8). A reading of order of

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rejection of the representation would make it out that the petitioner had

even earlier filed representation on 12.4.1996 against the adverse remarks

contained in the annual confidential report for the year 1995 and the same

was considered and rejected vide orders dated 19.11.1996. It appears that

the petitioner had concealed this fact while withdrawing the earlier writ

petition seeking permission to file a representation. Had he disclosed this

fact to the Court, in all probability his writ petition would have been

decided and not permitted to be withdrawn. Be that as it may, the fact

remains that the representation of the petitioner against adverse remarks

con-tained in his confidential report for the year 1995 stood rejected on

19.11.1996. After he sought permission to move on the administra-tive side

and file yet another representation, the same was also rejected vide

Annexure P-8 dated 12.8.1997. The petitioner has also alleged malafides but

considering the fact that his reports for the last ten years as per the

impugned order Annexure P-18 are all average but for one year and as per

his own showing at page 4 his record is only good for three years and

thereafter there is decline in his work and conduct throughout upto the

date when the impugned order was passed, this Court cannot even primafacie

come to a conclusion that average reports given to the petitioner right

from 1990-91 uptill date were actuated on account of malafides." (Emphasis

supplied)

The narration above, though longish in nature, has been reproduced for the

sake of brevity, as otherwise, this Court would have to deal with rather

longish submission appropriately. The factum of initiation of the Writ

Peti-tions is well pronounced in the narration above, but one other factor

which the High Court has thought it fit to omit, but in our view ought to

be noted with certain amount of detail by reason of the specific conduct of

the Writ Petitioner-Appellant. Not only there has been a steady decline in

progress as would be appearing from the Annual Confidential Report but the

Petitioner has indulged in litigation against the Company one after the

other, as detailed hereinbelow, without any hesitation whatsoever though,

however, without any success in order to bring home the charge of malafides

against the Respondent-Corporation.

(a) The Civil Writ Petition No. 12733 of 1989 was filed immediately after

issuance of the charges as regards the making of forge entry relating to

misappropriation of a sum of Rs. 58,500 on 15th September, 1989. The

statement of allegation was challenged by the Petitioner (during the

pendency of the Civil Writ Petition under discussion). A preliminary

inquiry was completed and upon consideration of the reply, the competent

authority ordered a regular inquiry and accordingly an Enquiry Officer was

appointed and a regular Enquiry was conducted. Enquiry Officer, as appears

from the records, duly submitted his report on 1st March, 1993 and a copy

of which was given to the Petitioner-appellant herein. The Petitioner,

however, did not take any further step against the enquiry Report, by

reason wherefor the competent authority upon consideration of all the

aspects of the case ordered stoppage of two annual increments of the

Petitioner-appellant with future effect. The order as passed by the

competent authority was subject to the final decision of the pending writ

petition and during the course of hearing of the writ petition, however,

before the Court, the petitioner-appellant withdrew the petition with

liberty to file a fresh writ petition.

(b) The Writ Petition being Writ Petition No. 9940 of 1995 was filed by the

petitioner-appellant challenging the Enquiry Report, as above, how-ever,

was dismissed by the High Court vide its order dated 31st March, 1997.

(c) The petitioner-appellant also filed the Writ Petition being No. 16227

of 1989 challenging the selection and appointment of Shri T.S. Gujral being

the Respondent No. 3 herein, as the Financial Advisor by the Board through

direct recruitment. The High Court, however, was pleased to dismiss the

same vide its order dated 9th January, 1991.

(d) By the other writ petition being Writ Petition No.8215 of 1993 the

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Petitioner-appellant herein prayed for a direction that the Respondent-

Board ought to consider him for promotion as Financial Advisor, which post

had fallen vacant on appointment of Shri T.S. Gujral as Member/F & A on

22.6.1993. The aforesaid Writ Petition was-also dismissed by the High Court

vide its order dated 8.9.93.

(e) By another writ petition being No. 528 of 1994, the Petitioner

challenged the action of the Board for re-advertising the post of Financial

Advisor, be it noted that the petitioner had applied for the post of

Financial Advisor, the High Court, however, was pleased to dismiss the writ

petition vide its order dated. 31.3.1997.

(f) The other writ petition filed by petitioner being No. 3367 of 1989

contained a challenge in regard to the promotion of Shri K.S. Bahri and

Shri Gajender Singh. The High Court, however, by an order dated 31.3.1997

allowed the writ petition with a direction that the petitioner's claim for

promotion to the post of Deputy Chief Accounts Officer, be considered with

effect from the date Respondent Nos. 4 and 5 therein were promoted i.e.

December 27, 1988 and in the event, the petitioner being found suitable for

promotion, consequential relief shall follow.

Incidentally, be it noted that the Board vide its order dated 23.5.1997 and

7.10.1997 granted a deemed date of promotion to the post of Deputy Chief

Accounts Officer with effect from 27th December, 1988 - obviously this

grant of promotion runs counter to the petitioner's submission pertaining

to malafides or a deliberate attempt to whittle down the capacity of the

petitioner to work.

(g) The petitioner moved yet another writ petition being Writ Petition No.

8638 of 1995 wherein the petitioner-appellant challenged the promotion of

Shri K.R. Rabra as Chief Accounts Officer (Revenue) on the ground that Shri

Rabra was junior to the petitioner-appellant herein both as an Accounts

Officer or as the Deputy Chief Accounts Officer. Upon hearing the matter,

the High Court, however, allowed the petition and directed the re-spondents

to consider the petitioner's claim for promotion with effect from the date

the persons junior to him were promoted The Board, however, considered the

matter in terms of the direction of the High Court and it was observed :

"that the post of Chief Accounts Officer/F.A. & C.A.O. are selection posts

and as such these are filled up only on merit. The service and ACR records

of Shri Prabodh Sagar who is senior to Shri K.R. Rabra and Shri S.C. Seth

as Deputy C.A.O. was considered arid it was found that even if the effect

of punishment to stoppage two increments with cumulative effect ordered

vide Office Order No. 61/DSI-D-664 dated 21.1.94 is not taken cognizance of

as per High Court judgment, he can still not be promoted as his ACR record

for the last many years in only Average and is not upto the required

standard for a selection post. On the other hand, the ACR record of other

officers is Good/ Very Good and is distinctly better than that of Shri

Prabodh Sagar. Even subsequently Shri Prabodh Sagar has not shown any

improve-ment as his next year ACR of 1995-96 is of 'Poor' rating. Accord-

ingly, Shri Prabodh Sagar is not found fit for promotion to the selection

post of Chief Accounts Officer (Revenue)/FA & CAO."

(h) The petitioner thereafter moved another writ petition (No. 8638 of

1995) but since the same are pending, we do not wish to record any

observations pertaining thereto and the issues therein are left open.

(i) Subsequently, the petitioner moved another Writ Petition being No. 1280

of 1997 wherein the challenge was in regard to adverse remarks in the

Annual Confidential Roll for the periods From June, 1985 to December, 1985.

The Writ Petition, however, met the same fate and was dismissed by the High

Court on 20th January, 1997.

(j) There is yet another writ petition filed being Writ Petition No. 3935

of 1998 wherein the petitioner again challenged the promotion of Shri K.R.

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Rabra as Chief Accounts Officer/Revenue and the promotion of Shri S.C. Seth

as Financial Advisor and Chief Accounts Officer, the same is still now,

however, is pending.

As noted above, the High Court has not highlighted this aspect of the

matter, though the same were brought to the notice of the High Court, we do

not know for that reasons, neither we intend to delve into it but the fact

remains that the comment of the learned Advocate appearing for the Board

during the course of hearing before his Court that the litigatious spirit

of the petitioner has, in fact, brought into effect the exercise of

jurisdiction of the writ court to a ludicrous extent. We do find some

justification in the criticism of the learned Advocate for the Board vis-a-

vis the conduct of the Petitioner/ Appellant herein. The Petitioner has

been, as noted above, from 1989 onwards engaged himself in the law courts

rather than exerting himself in an effort to improve his capability as the

employee of the Board so that the Board and the State obtain maximum

benefit from out of the services of the petitioner-appellant but

unfortunately his litigatious spirit prevailed upon him and as noticed

above we do find some justification as regards the comment made by the

learned Advocate appearing for the Board. Malafides have been alleged

against the statutory Board (Punjab State Electricity Board) but the

contextual facts negates such an allegation. Incidentally, be it noted that

the expression 'malafide' is not a meaningless Jargon and it has its proper

connotation. Malice or malafides can only be appreciated from the records

of the case in the facts of each case. There cannot possibly be any set

guidelines in regard to the proof of malafides. Malafides, where it is

alleged, depends upon its own facts and circumstances. We ourselves feel it

expedient to record that the petitioner has become more a liability than an

asset and in the event of there being such a situation vis-a-vis an

employee, the employer will be within its liberty to take appropriate steps

including the cessation of relationship between the employer and the

employee. The service conditions of the Board's employees also provides for

Voluntary Retirement, a person of the nature of the petitioner, as more

fully detailed herein before, cannot possibly be given any redress against

the order of the Board for Voluntary Retirement. There must be factual

support pertaining to the alle-gations of malafides, unfortunately there is

none. Mere user of the word 'malafide' by the petitioner would not by

itself make the petition entertainable. The Court must scan the factual

aspect and come to its own conclusion i.e. exactly what the High Court has

done and that is the reason why the narration have been noted in this

judgment in extenso. Tampering of the Annual Confidential Rolls have been

alleged but there is. no evidence in regard thereto or even to link up the

two private respondents therewith. While it is true that the earlier

relationship between an employer and employee or between the employees was

that of mutual trust, confidence or welfare, presently the situation in

general stands polluted and may be even one degree higher than the

pollution of the environment, but that does not, however, clothe the court

to come to a conclusion of malafide without there being any basic evidence

being made available to the court.

Punjab State Electricity Board Services (Premature Retirement) Regu-

lations, 1982, has been taken recourse to by the Board and in particular,

regulation 3(i)(e) which, in fact, provides an authority to the Board with

an absolute right to retire an employee on the date on which he completes

25 years of service or attains 50 years of age upon, however, proper notice

to that effect. The Board has, thus, an absolute power to retire an

employee pre-maturely though, however, upon following the procedure set out

in the rules and the same having been done, can it be said that the legal

right of the petitioner stands violated - the answer cannot but be in the

negative. The next question that automatically crops up is as to whether

the formation of opinion has been, in accordance with public interest or

not - the facts noted above depict evidence galore as regards the

justification of formation of such an opinion.

On the facts narrated above, no reasonable man can come to a conclusion,

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which may even be remotely different from that of the appro-priate

authority of the Board. A right has been conferred on to the Board to take

steps in public interest and in the event the Court comes to a conclusion

that a right has not been properly exercised, there would not have been any

hesitation to strike down the action of the State Electricity Board, but in

the contextual facts, we do not find any. There is available on record

reasonings to the issue or the formation of opinion and the same cannot but

in the contextual facts is in accordance with the need of the situation.

In that view of the matter, we are unable to accept the contentions in

support of the Appeal. The Appeal, therefore, fails and is dismissed. No

order as to costs.