w w w . L a w y e r S e r v i c e s . i n



Union of India v/s Madhusudan Pathak


Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- MADHUSUDAN LIMITED [Strike Off] CIN = U17110DL1934PLC002542

Company & Directors' Information:- PATHAK CORPORATION PRIVATE LIMITED [Active] CIN = U74110MH2008PTC182357

Company & Directors' Information:- UNION COMPANY LTD. [Active] CIN = U36900WB1927PLC005621

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- MADHUSUDAN AND COMPANY PRIVATE LIMITED [Active] CIN = U24232RJ1994PTC008405

Company & Directors' Information:- UNION COMPANY PRIVATE LIMITED [Dissolved] CIN = U99999KA1942PTC000292

    CWJC 5681,6334 Of 2004

    Decided On, 28 September 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE SHASHANK KUMAR SINGH & THE HONOURABLE MR. JUSTICE NAVIN SINHA

    For the Appearing Parties: Ajoy Kumar Tripathi, Sadanand Jha, Sunil Kumar Upadhayay, Advocates.



Judgment Text

NAVIN SINHA, J.

(1.) The above mentioned two writ applications arise out of singular proceedings before the Central Administrative Tribunal Patna Bench and have therefore been heard together and are being disposed by this common order. CWJC No. 5681 of 2004 preferred by the Union of India would assail the direction of the Tribunal to reconsider the quantum of punishment imposed upon the petitioner in CWJC No. 6334 of 2004. The latter would question the punishment of compulsory retirement imposed upon the petitioner.

(2.) We have heard at length learned Senior Counsel Dr. Sadanand Jha appearing on behalf of the delinquent petitioner Shri Pathak, assisted by Shri Anil Kumar Upadhyay, Advocate and Shri Ajay Kumar Tripathy, the Additional Central Government Standing Counsel for the Union of India.

(3.) This Court would consider the facts of the case in so far as they be relevant for the purposes of adjudication of the present controversy. The petitioner in CWJC No. 6334 of 2004 would question the orders of punishment of compulsory retirement dated 2.7.1997 at Annexure 12, the order of the Tribunal dated 5.2.2003 in T.A. No. 1 of 2000 at Annexure 20 affirming the same and the order dated 23.1.2004 passed by the Tribunal in Review Application No. 11 of 2003 arising out of T.A. No. 1 of 2000 dismissing the review. CWJC No. 5681 of 2004 would question the order in M.A. No. 361 of 2003 passed in R.A. No. 11 of 2003 preferred by the petitioner of CWJC No. 6334 of 2004 directing the Union of India to reconsider the quantum of punishment of compulsory retirement imposed on the petitioner, under Rule 11 of the Central Civil Services (Classification Control and Appeal) Rules (hereinafter referred to as the CCS (CCA) Rules).

(4.) The petitioner in CWJC No. 6334 of 2004, Shri Pathak, was selected and appointed as an Assistant Executive Engineer (Civil Wing) on 16.2.1976 in the Department of Posts and Telecommunication, Ministry of Communication, Government of India, New Delhi. He was then promoted as an Executive Engineer regularly from 5.12.1981. Consequent to the bifurcation of the Department of Posts and Telecommunications the petitioner was placed in the Department of Telecommunications. In Routine course of service he was transferred as Executive Engineer and posted at Bombay on 26.10.1990 in the office of the Superintending Engineer, Postal, Bombay.

(5.) On 12.4.1991 while returning to his native place, the petitioner, Shri Pathak, was subjected to a physical search at the Victoria Terminal Railway Station at Bombay when cash amounting to Rs. 60, 292/- plus a bank draft of Rs. 19,000/-were found on his person. The records would reveal that the matter was enquired into by the CBI which submitted its conclusions to the CVC and after deliberations the vigilance Section of the Ministry of Communications by an order dated 20.5.1992 at Annexure 2 arrived at the conclusion that "even on the basis of assumptions and on preponderance of probability, standard of proof it would be difficult to sustain the charges." "In the absence of specifying the corrupt means in which Shri Pathak could probably acquire money misusing his official position it would be difficult to take a firm view about initiating disciplinary proceeding against Shri Pathak departmentally". For the same reasons it was not found desirable to suspend him. The conclusion was, "it is felt that either the Central Bureau of Investigation should be asked to make further investigation or the case be closed." In pursuance of this report dated 20.5.1992 nothing further appears to have happened till the articles of charges were framed and served upon the petitioner on 23/30-3-1993. The charges essentially would be that during the period of October 1990 to April 1991 he deposited an amount of Rs. 75,000/- acquired by illegal means in two bank accounts in Patna in his own name as also that of his wife by transfer or cash. He was in possession of cash of Rs. 60,292/- on 12.4.1991 which he would not satisfactorily account for. He could not satisfactorily account or explain the draft for Rs. 19,000/- purchased by him in the name of his wife. The aforesaid would show that he did not maintain absolute integrity and devotion to duty and acted in a manner, unbecoming of a government servant and thereby contravened Rule 3(1)(i)(ii) and (iii) of the CCS (CCA) Rules, 1964.

(6.) The petitioner, Shri Pathak, then filed O.A No. 674 of 1993 before the Central Administrative Tribunal, Bombay Bench at Bombay, for quashing the departmental proceedings initiated against him which was admitted by order dated 21.7.1993. By an order dated 20.6.1994, at Annexure 4, the Tribunal directed the respondents to complete the departmental proceedings within four months. On 8.2.1995, at Annexure 7, on an application for extension of time by the respondents in M.P. No. 107 of 1995, the Tribunal granted final time to the respondents upto 31.5.1995 with a direction that the respondents should complete the disciplinary proceedings by the said date. The respondents having failed to complete the proceedings by 31.5.1995 the petitioner Shri Pathak filed contempt Petitions C.P. No. 92 of 1995 and C.P. No. 58 of 1997 for initiating contempt proceedings against the respondents for not completing the departmental proceedings in time. The respondents also filed M.P. No. 438 of 1995 on 7.6.1995 (after expiry of the time fixed) for extension of time on the second occasion to complete the departmental proceedings. This was rejected by the Tribunal on 10.11.1995. The respondents did not assail this order before any superior forum. On 10.7.1997 the petitioner, Shri" Pathak, then filed M.P. No. 379 of 1997 to restrain the respondents from passing any order in the departmental proceedings. On 11.7.1997 the Tribunal after hearing the respondents also passed an order restraining the respondents from passing any final orders in the enquiry initiated against the petitioner, Shri Pathak, for a period of 14 days. The final order of punishment in the disciplinary enquiry visiting the petitioner with compulsory retirement then came to be passed on 2.7.1997 after the rejection of their prayer for extension of time made on 7.6.1995 in M.P. No. 438, of 1995 by order dated 10.11.1995. The respondents on 11.7.1997 would not have apprised the Court that the final orders would have already been passed on 2.7.1997 even though this order would have been passed in their presence represented by their Counsel Shri V.S. Masoodkar. The Court considers it necessary to deal with the aforesaid dates in the background of the allegations that the impugned order of punishment was clearly an act to over reach the orders of the Tribunal with regard to the time frame for conclusion of the departmental proceedings and final orders thereupon.

(7.) By an amendment petition, M.P. No. 635 of 1997, the petitioner Shri Pathak challenged the order of compulsory retirement dated 2.7.1997. in pursuance of a transfer application preferred by the petitioner Sri Pathak before the Principal Bench CAT New Delhi being P.T. No. 153 of 1999, by order dated 5.11.1999 the original O.A No. 674 of 1993 was transferred to the Patna Bench of the Tribunal and registered as T.A. No. 1 of 2000. By a judgment dated 3.5.2001 at Annexure 15, the Tribunal rejected the contention of the petitioner that the order was bad as having been passed after 31.5.1995, the time fixed by the Tribunal for completion of the departmental proceedings and the order dated 11.7.1997 restraining the respondents from passing any orders for 14 days. The judgment also rejected the challenge to the enquiry report and the order of punishment. The application was therefore dismissed as devoid of merit.

(8.) The petitioner Shri Pathak, would then have preferred CWJC No. 11994 of 2001 before this Court. By order dated 5.8.2002 at Annexure 17, this Court quashed the judgment dated 3.5.2001 in T.A. No. 1 of 2000 and remanded the matter to the Tribunal for taking a fresh decision in the matter.

(9.) The Tribunal by its fresh decision dated 5,2.2003 in T.A. No. 1 of 2000 on remand upheld the enquiry report but arrived at the conclusion that the punishment imposed was not commensurate to the gravity of the charges and accordingly directed the respondents Union of India to reconsider the quantum of punishment. The petitioner Shri Pathak would then have preferred Review Application No. 11 of 2003 inter alia on the a ground that on remand the Tribunal would not have considered the legality of the order of punishment dated 2.7.1997 passed after the time fixed by the Tribunal even though urged by Shri Pathak. During the pendency of R.A. No. 11 of 2003 the respondents would have reconsidered the quantum of punishment in terms of the order of the Tribunal dated 5.2.2003 and would have arrived at the conclusion on 22.9.2003 that it was in consonance with the materials during enquiry and Rule 11 of the Central Civil Services (Classifications Control and Appeal) Rules and therefore required no interference, the petitioner Shri Pathak would then have filed M.A. No. 361 of 2003 on 3.11.2003 in R.A. No. 11 of 2003 challenging the same. The Tribunal would then have on 23.1.2004 rejected Review Application No. 11 of 2003 but quashed the order dated 22.9.2003 refusing to reconsider the quantum of punishment and required the respondents to visit the petitioner Shri Pathak with a lesser punishment.

(10.) CWJC No. 5681 of 2004 was then filed by the Union of India assailing the order dated 22.9.2003 in M.A No. 361 of 2003 in R.A. No. 11 of 2003 while CWJC No. 6334 of 2004 would have been filed by the petitioner Sri Pathak against the order of the Tribunal upholding the finding of guilt and punishment imposed upon him in the disciplinary proceedings.

(11.) Learned Senior Counsel Dr. Sadanand Jha assailed the very commencement of the disciplinary proceedings to submit that nothing further happened and no further material transpired after the decision of the Vigilance Section dated 20.5.1992 at Annexure 2 recorded that the material available against the petitioner Shri Pathak be insufficient to initiate disciplinary proceedings and that even on basis of presumptions and the standard of proof on preponderance of probability it would be difficult to sustain the charges. Continuing the submissions it was stated that in any event the enquiry report was based on conjectures and surmises with no positive and conclusive findings to uphold the charge of disproportionate assets. The conclusions of the Enquiry Officer would be that the explanations given by the petitioner Shri Pathak was "not the normal way of conducting the ordinary business of life," The purported slip claimed by Shri Pathak in referring the name of the Bank incorrectly is "not tenable." The explanation for the liquid cash retained by him would be "not the normal conduct of a person to keep such huge amount in cash specially when he was alone and would have kept the same in bank to be withdrawn when necessary (amount being Rs. 45,0007-)". "It was questionable why he did not carry the amount by way of a demand draft." Based on the aforesaid the finding was that the explanations" do not reflect normal conduct of an intelligent person." His explanations were not convincing and in conclusion that he had failed to "satisfactorily account," for his sources of. income, bank deposits, bank drafts and cash in possession. Learned Counsel thus submitted that even in a departmental proceeding mere suspicion would not replace proof. Though standards of proof in a departmental proceeding be not strict as a criminal proceedings, nonetheless there was required to be a finding positive and conclusive of guilt. For the purpose he placed reliance on the judgments of the Supreme Court (Union of India v. N.C. Goel) and (Nand Kishore Prasad v. The State of Bihar and Ors.). The submission thus was that the enquiry report was not tenable in law to uphold the order of compulsory retirement on basis thereof and was accordingly required to be set aside along with the order of punishment dated 2.7.1997.

(12.) The next submission of the learned Senior Counsel Dr. Jha was that the impugned order of punishment dated 2.7.1997 would have been passed long after the Tribunal had interdicted the authorities from passing the order of punishment. Initially on 20.6.1994 time would have been granted out complete the proceedings in fur months. On 8.2.1995 a final extended time would on prayer made by the respondents have been granted till 31.5.1995 to complete the proceedings. The subsequent M.P. No. 438 of 1995 preferred by the Union of India for the second extension of time to complete the proceeding would also have been rejected. The petitioner would then have preferred M.P. No. 379 of 1997 to restrain the respondents from passing any orders in the departmental proceedings. On 11.7.1997 The Tribunal would have restrained the respondents from passing any order for 14 days. This order would have been passed after hearing counsels for the respondents. There was thus no occasion for the respondents to contend that the order of punishment dated 2.7.1997 had been passed prior to the order dated 11.7.1997 of the respondents. It was submitted that an order in teeth of the interdict of a Court was a void order and nullity, it could not be allowed to stand M.P. No. 438 of 1995 preferred by the respondents for the second extension of time to pass final orders was rejected on 10.11.1995. The respondents did not challenge the same before any superior Court. The order thus attained finality inter partes. The respondents thereafter clearly could not pass any orders in the departmental proceedings after 31.5.1995. In support of the submission he sought to place reliance on a Judgement of the Supreme Court (State of Kerala v. M.K. Kunhikannan Nambiyar Manjeri Manikoth, Naduvil, (dead) and Ors.), more particularly paragraph 7 of the same.

(13.) It was next contended that no executive authority could act contrary to the order of a Court. The Tribunal being a Court any order passed contrary to its direction would be illegal. In support of the submission he sought to place reliance upon judgments reported in 2001(1) SCC 582 (Union of India v. K.M. Shankarappa), paragraph 7, 1994 Suppl (2) SCC 641 (Ravi S. Naik v. Union of India and Ors.) and lastly on a judgment (Prakash Narain Sharma v. Burhah Shell Cooperative Housing Society Ltd.). It was submitted that to permit the order of punishment to stand notwithstanding that it was contrary to the orders and directions of the Court and to accept the same for reason of the fact that it would now have been passed as a issue of fact, was too dangerous a proposition and was fraught with danger in as much as it would vest powers in the executive to ignore, overreach and treat with impunity the orders of a Court. The next submission of Dr. Jha was that the respondents having accepted the judgment dated 5.2.2003 in T.A. No. 1 of 2000 in remand by the High Court under CWJC 11994 of 2001 and having reconsidered the quantum of punishment as directed therein, there was no occasion for the respondents to question the directions in that regard in M.A. No. 361 of 2003 in Review Application No. 11 of 2003 as being in excess of the power of the Court. It would have been for the respondents to question the order dated 5.2.2003 requiring them to reconsider the quantum of punishment by approaching a higher Court. Once it was accepted by them they would be precluded from challenging the same. Though the Tribunal would have considered this aspect of the matter in the original order dated 3. 5.2001 in T.A. No. 1 of 2000, at paragraph 8, the issue was neither considered afresh after the judgment was set aside by the High Court and remanded and neither did the Tribunal apply its mind to this aspect in the Review Application No. 11 of 2003 filed by the petitioner pointing out inter alia that this issue remained undecided.

(14.) Learned Senior Counsel Dr. Jha next contended that in the given facts and circumstances of the case, the order dated 2.7.1997, of punishment, was afflicted by mala fides in law. The petitioner would have been a victim of machinations and manipulations in a fight for seniority.

(15.) The last submission was that the petitioner would be entitled to an order of reinstatement at least with 50% of the back wages placing reliance upon a judgment (A.L. Kalra v. The Project and Equipment Corporation of India Ltd.)

(16.) Shri Ajay Tripathy, Additional Standing Counsel, Central Government, in reply, submitted that the Tribunal had recorded its satisfaction that the disciplinary enquiry was conducted in accordance with law and findings arrived at therein. The Tribunal had rightly recorded that it would not be the domain of the Court to re-assess the enquiry report, which in any event, it did not find fault with. The punishment of compulsory retirement was justified under Rule 11 of the Central Civil Services (CCA) Rules. The first proviso of which would provide that in case of a charge of disproportionate assets the punishment was removal or dismissal, while the respondents would have imposed a lesser punishment of compulsory retirement. It was further submitted that the Tribunal would have in its original order dated 3.5.2001 in T.A. No. 1 of 2000 at paragraph 8 recorded its conclusion that no doubt the order of compulsory retirement dated 2.7.1997 was beyond the time fixed by the Tribunal for passing of final orders by 31.5.1995, but the contempt applications filed by the petitioner in this background was dismissed and that it was rightly held that the order dated 11.7.1997 in M.P, 379 of 1997 restraining final orders for 14 days was interim in nature which could not be a ground for quashing the order. In any event, the time fixed by the Tribunal was directory in nature and not mandatory. There was no peremptory order. Though the action of the respondents be technically in violation of the order of the Tribunal, the Tribunal would itself have condoned the violation as noticed above for reason of the dismissal of the contempt applications. The judgments cited on behalf of the petitioner were not applicable. In any event, the petitioner would have acquiesced by challenging the order of compulsory retirement dated 2.7.1997. This aspect of the matter was not urged before the Tribunal either on remand by the High Court when the fresh order dated 5.2.2003 came to be passed or in the Review Application and was thus now available to the petitioner Shri Pathak.

(17.) The respondents having reconsidered the issue of quantum of punishment in pursuance of the order dated 3.5.2001 of the Tribunal passed on remand by the High Court there was no occasion for the Court to interfere with the same subsequently. Quantum of punishment to be imposed was basically an administrative prerogative as held in (State Bank of India and Ors. v. Samarendra Kishore Endow and Anr.).

(18.) This, Court would have considered the submissions made by the respective counsels as also the materials on record. The Court would find that the law with regard to departmental proceedings and the scope for interference in the same by a writ Court would stand well settled by now. It would not be the domain of a writ Court to enter into a factual reassessment of the materials placed and considered in a disciplinary proceeding and arrive at its own finding as an appellate authority. Unless the Court were to find a procedural irregularity, perversity of finding etc. there would be no occasion for a writ Court to interfere. Simultaneously the law would be well settled that there would have to be a finding with regard to the guilt of the delinquent before he could be visited with an adverse order. Undoubtedly, as distinct from a criminal prosecution, the charges would not have to be proved beyond all reasonable doubt. The findings would have to be based on a preponderance of probability to arrive at a conclusion which a reasonable man would arrive at based on the materials available. This would necessarily be a stage higher than mere suspicion. The finding of a disciplinary authority based on surmises and conjectures or rhetorical incantation of disciplinary cliches could not be upheld in law.

(19.) The Supreme Court in the case of Bank of India and Anr. v. Degala Survanarayana AIR 1999 SC 247 would have held at paragraph 11 as follows :

"Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravemen of the charge against the delinquent officer/Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The Court cannot embark upon reapreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel , the Constitution Bench has held (at p. 370, para 23 of AIR): the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. "

(20.) The learned Counsel for the petitioner would therefore rightly rely upon a Constitution Bench judgment (Union of India v. N.C. Goel) to contend that it would remain open for this Court to examine whether there be evidence in support of the findings arrived at in the enquiry. If the conclusion is perverse the High Court would be justified in quashing it.

(21.) Similar would be the view held by the Supreme Court in the case of Sher Bahadur v. Union of India and Ors. wherein at paragraph 7 their Lordships would hold that there must be some evidence which links the charged officer with misconduct. Evidence which may be voluminous but which neither is relevant nor establishes any nexus between the alleged misconduct and the charged officer is no evidence in law. To quote "the mere fact that the Enquiry Officer has noted in his report "in view of oral, documentary and circumstantial evidence as adduced in the enquiry" would not in principal satisfy the Rule of sufficiency of evidence. What is required is a clear case of finding the delinquent guilty of the charge with the alleged misconduct.

(22.) In this case, the Court would find that the CBI and vigilance Section of the Department by an order dated 20.5.1992, at Annexure 2, would have arrived at the finding that there would not be sufficient materials to proceed against the petitioner departmentally and that it was necessary that the matter be further investigated or be closed. It is not in controversy that nothing further happened thereafter when the departmental proceedings came to be initiated on the same materials. There would be no fresh materials which would have surfaced subsequently as distinct from the earlier enquiry by the CBI as noticed above. The findings of the Enquiry Officer would only be that the explanations given by the petitioner would not be "the normal way of conducting ordinary business of life, the explanations were not tenable, it would not be normal conduct of a person to keep such amount of cash (45,000/-) which could have been kept in a bank to be withdrawn when necessary or could be kept in a form of bank draft, his explanations do not reflect the conduct of an intelligent person, his replies were not convincing and therefore he had failed to give a satisfactory reply of his income." This Court cannot loose sight of the fact that the proceedings related to the period October 1990 to April 1991. The amounts involved would have been Rs. 45,0007- Rs. 60,2927- and Rs. 19,0007- respectively. The CBI/Vigilance report dated 20.5.1992, at Annexure 2 would on investigation record that there would be "no irregularities committed by Shri Pathak in the matter of showing undue favour to Contractors etc." "There would also be no materials to support even an allegation of misuse of official, position arrived at in the enquiry by the CBI and that in absence of specifying the corrupt means by which Shri Pathak could probably acquire money misusing his official position, it would be difficult to take a firm view in departmental proceedings." The petitioner is stated to be in government service since 16.2.1976 when he was appointed as an Assistant Executive Engineer, was promoted as an Executive Engineer followed by his ad hoc promotion to the post of Superintending Engineer during the course of the litigations. Can it by any reasonable stretch be said that a person who was in possession of the aforesaid amounts and was in service for nearly 14 years had committed a blasphemy of such nature and magnitude in the background of the nature of the enquiry report that he was required to be visited with an order of compulsory retirement. The conclusion based on the aforesaid discussion would be that there would be no allegation, material or finding of misuse of official position against the petitioner, Shri Pathak, or of acquiring money by corrupt means leading to a conclusion that his conduct in keeping the amounts in question in the manner done was not the normal conduct of a prudent, intelligent person. There would however be no conclusive finding against him of being in possession of assets disproportionate to his income.

(23.) In so far as the issue of the order of compulsory retirement dated 2.7.1997 being contrary to and against the interdict of the Court be concerned, this Court would hold that it finds it difficult to uphold the contentions of the respondents. What is sought to be submitted by them as a technical violation would be a far more serious issue relating to interference with judicial orders by an executive authority, to accept which as one to be ignored would be fraught with danger for the rule of law. This Court would find from the judgments relied upon by the petitioners that the order of punishment dated 2.7.1997 was clearly against the interdict of the Court and thus illegal. The Apex Court in the Case of Union of India v. K.M. Shankarappa reported in 2001 (1) SCC 582 relied upon by Dr. Jha, while considering the effect of the power of the Central Government under Section 6 of the Cinematography Act 1952 vesting powers in the Central Government to call for the records of any proceeding in relation to any film pending before the Censor Board or Tribunal (not pending before the Tribunal) and to enquire into the same held at paragraph 7 as follows :

"We are unable to accept the submission of the learned counsel. The Government has chosen to establish a quasi-judicial body which has been given the powers, inter alia, to decide the effect of the film on the public. Once a quasi- judicial body like the Appellate Tribunal, consisting of a retired Judge of a High Court or a person qualified to be a Judge of a High Court and other experts in the field, gives its decision that decision would be final and binding so far as the executive and the Government is concerned. To permit the executive to review and/or revise that decision would amount to interference with the exercise of judicial functions by a quasi-judicial Board. It would amount to subjecting the decision of a quasi- judicial body to the scrutiny of the executive. Under our Constitution the position is reverse. The executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The legislature may, in certain cases, overrule or nullify a judicial or executive decision by enacting an appropriate legislation. However, without enacting an appropriate legislation, the executive or the legislature cannot set at naught a judicial order. The executive cannot sit in an appeal or review or revise a judicial order, the Appellate Tribunal consisting of experts decides matters quasi-judicially. A secretary and/or Minister cannot sit in appeal or revision over those decisions. At the highest, the Government may apply to the Tribunal itself for a review, if circumstances to warrant. But the Government would be bound by the ultimate decision of the Tribunal."

(24.) Likewise in the case of Prakash Narain Sharma v. Burmah Shell Cooperative Housing Society Ltd. , relied upon by Dr. Jha the Supreme Court considering the effect of an award by the Arbitrator in the face of an order of injunction proceeded to hold at para 7 as follows :

"Having heard the learned counsel for the parties, we are of the opinion that the appeal is liable to be dismissed. For the purpose of the present case we do not propose to enter into controversy whether the civil Court, on the averments made in the plaint, could have entertained a civil suit and could have passed the restraint order in the terms of which it did. It would suffice for our purpose to hold that Respondent 1 Society, arbitrator from proceeding ahead with the arbitration proceeding, could have reasonably acted on the belief that in view of the restraint order of the civil Court the arbitrator would stay his hands and shall not proceed ahead. It would have been better if the Society, through its representative or counsel, would have made appearance before the arbitrator either to apprise the arbitrator with the order passed by the Civil Court or at least to ascertain whether the order was communicated or brought to the knowledge of the arbitrator. In spite of such lapse on the part of the Society, it is not so much a question of legality or availability of jurisdiction with the Civil Court in passing the restraint order as it is a question of finding out the availability of sufficient cause for non-appearance of the Society before the arbitrator on the appointed date of hearing. We do not agree with the reasoning of the Division Bench of the High Court that a Civil Court cannot under any circumstances entertain a civil suit in respect of proceedings pending before the Registrar, Cooperative Societies. Even where exclusion of jurisdiction of the Civil Court is statutorily provided still on availability of requisite grounds the Civil Court can entertain a Civil suit on well-defined parameters settled by the Constitution Bench of this Court in Dhulabhai v. State of M.P. . In any case we are not prepared to subscribe to the view of the Division Bench that the Registrar of Cooperative Societies could have ignored the order of the Civil Court as not binding on him in view of the provisions contained in Sections 93(3), 93(1)(c) and 60 of the Act. It will be a dangerous proposition to be laid down as one of law that any individual or authority can ignore the order of the Civil Court by assuming authority upon itself to decide that the order of the Civil Court is one by coram non judice. The appropriate course in such case is for the person aggrieved first to approach the Civil Court inviting its attention to the relevant provisions of law and call upon it to adjudicate upon the question of its own jurisdiction and to vacate or recall its order if it be one which it did not have jurisdiction in law to make. So long as this is not done, the order of the competent Court must be obeyed and respected by all concerned. A judicial order, not invalid on its face, must be given effect to entailing all consequences, till it is declared void in a duly constituted judicial proceedings."

(25.) This view would have been reiterated in 1994 Suppl. (2) SCC 641 (Ravi S. Naik v. Union of India and Ors.) relied upon by Dr. Jha, while considering whether certain members of the Goa Legislative Assembly could have been debarred in view of the order in a writ petition challenging the valid of the order of their disqualification and which had been stayed by the Court would have held at paragraph 40 as follows: We will first examine whether Bandekar and Chopdekar could be excluded from the group on the basis of order dated December 13, 1990 holding that they stood disqualified as members of the Goa Legislative Assembly. The said two members had filed Writ Petition No. 321 of 1990 in the Bombay High Court wherein, they challenged the validity of the said order of disqualification and by order dated December 14, 1990 passed in the said writ petition the High Court had stayed the operation of the said order of disqualification dated December 13, 1990 passed by the Speaker. The effect of the stay of the operation of the order of disqualification dated December 13, 1990 was that with effect from December 14, 1990 the declaration that Bandekar and Chopdsekar were disqualified from being members of Goa Legislative Assembly under Order dated December 13, 1991 was not operative and on December 24, 1990, the date of the alleged split, it could not be said that they were not members of Goa Legislative Assembly. One of the reasons given by the Speaker for not giving effect to the stay order passed by the High Court on December 14, 1990, was that the said order came after the order of disqualification was issued by him. We are unable to appreciate this reason. Since the said order was passed in a writ petition challenging the validity of the order dated December 13, 1990, passed by the Speaker it, obviously, had to come after the order of disqualification was issued by the Speaker. The other reason given by the Speaker was that Parliament had held that the Speaker's order cannot be a subject-matter of Court proceedings and his decision is final as far as Tenth Schedule of the Constitution is concerned. The said reason is also unsustainable in law. As to whether the order of the Speaker could be a subject-matter of Court proceedings and whether his decision was final were questions involving the interpretation of the provisions contained in Tenth Schedule to the Constitution. On the date of the passing of the stay order dated December 14, 1990, the said questions were pending consideration before this Court. In the absence of an authoritative pronouncement by this Court the stay order passed by the High Court could not be ignored by the Speaker on the view that his order could not be a subject-matter of Court proceedings and his decision was final. It is settled law that an order, even though interim in nature is binding till it is set aside by a competent Court and it cannot be ignored on the ground that the Court which passed the order had no jurisdiction to pass the same. Moreover the stay order was passed by the High Court which is a superior Court of Record and "in the case of a superior Court of Record, it is for the Court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction." (See: Special Reference No. 1 of 1964 SCR at p. 499).

(26.) The Supreme Court in the case of Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and Anr. , while considering the effect of an act/order in violation of an order of the Court would hold that quite apart from the issue of contempt involved therein, that the legal consequences of an act done in breach of an order of the Court would be illegal arid the Court would be justified in undoing the wrong in the interest of justice. Their Lordships in paragraphs 18 and 19 of the judgment would have considered the English law as also approved the views as propounded by the High Courts in the Country. This Court would do no better than quote the same as under:

"18. The above principle has been applied even in the case of violation of orders of injunction issued by Civil Courts. In Clarke v. Chadburn Sir Robert Megarry V-C observed: I need not cite authority for the proposition that it is of high importance that orders of the Court should be obeyed. Willful disobedience to an order of the Court is punishable as a contempt of Court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the person enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalities for contempt of Court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them. 19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. v. S. Suppiah and Sujit Pal v. Prabir Kumar Sun . In Century Flour Mills Ltd. it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay pr injunction, it is the duty of the Court, as a policy, to set the wrong right and not allow the perpetuation of the wrong doing. The inherent power of the Court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refusing to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order."

(27.) Learned Senior Counsel Dr. Jha would also aptly rely upon a Division Bench judgment of this Court in a case (Nawal Kishore Prasad Sinha and Ors. v. State of Bihar and Ors.) while considering the effect of a meeting held in contravention of an order of the High Court held that the same would be a clear nullity. The fact that this may be amenable to a proceeding to contempt would be an entirely different issue. Considering the effect of a meeting held in violation of the order of stay by the High Court their Lordships held as follows in the relevant extract of paragraph 8 quoted below : I take up the submissions of Mr. Singh that even if there was a violation of the order, action has to be taken under the Contempt of Courts Act, 1971 which is a self contained Act and procedure has been laid down for violation of such orders which may amount to civil or criminal contempt. The inherent power of the High Court - the argument continues - puts a limit on the power by requiring a trial of the issue and enjoins that no sentence can be imposed, unless the Court is satisfied that the contempt is of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice. And in this connection reliance has been placed on some decisions which I will discuss later but at the very outset I must say the argument is wholly misconceived. The question of committal or non-committal under the Contempt of Court's Act is one of the discretion of the Court and can be exercised when this Court is fully satisfied that there has been deliberate attempt to flout the order of this Court. That will depend on the facts of each case, the nature of the order and the act complained of. But without initiating a proceeding for contempt this Court can quash any order or proceeding done in disregard of such orders which may also tantamount to contempt. It is very difficult to accept this extreme position that the acts done in defiance of Court's order can only be dealt with under the Contempt of Court's Act where a complete machinery is provided for and in no other manner. The Act does not out any bar. By accepting this provision this Court will have to completely ignore the illegal acts of the subordinate authorities and, I may hasten to add, this will lead to dangerous results. This Court, when confronted with such situation, has to exercise its power conferred under the Constitution and pass necessary orders to undo the wrong and to do justice between the parties....

(28.) The Tribunal would have erred in law by simply recording that the dismissal of the contempt applications could be interpreted as dilution of the nature of the order fixing time by the Tribunal for passing final orders or that violation of an interim order could not be illegal. What was sought to be contended by the respondents as a simple technical violation would be a far serious issue. As noticed above the Tribunal on 20.6.94 would have directed the departmental proceedings to be completed in four months. On 8.2.1995, at the request of the respondents the Tribunal would have extended the time finally till 31.5.95. The respondents would have sought further extensions on 7.6.95 (after expiry of time granted) which the Tribunal would have rejected on 10.11.1995. The only course open to the respondents was to approach a superior Court after M.P. 438 of 1995 fil

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ed by them seeing extension of time to pass final orders was rejected on 10.11.1995. The respondents did not do so. Learned Counsel for the petitioner Sri Pathak has rightly relied upon the judgment of the Supreme Court in State of Kerala v. M.K. Kunhikannan Nambiyar Manjeri Manikoth, Naduvil (dead) and Ors.) to submit that this aspect of the matter attained finality inter parties and therefore the order of punishment dated 2.7.1997 passed long after and contrary to the time granted by the Tribunal was bad in law. In the aforesaid case the respondents 3 and 4 would have filed application for impleadment in the proceedings against respondent No. 2. The impleadment petition was rejected by the Taluk Land Board. In the subsequent proceedings against respondents 1 and 2 on remand the respondents 3 and 4 sought to have themselves impleaded afresh. The Apex Court then held at paragraph 7 that the order refusing to implead respondents 3 and 4 in the fresh proceedings after remand was fully justified as the earlier order of the Board refusing to implead them was not challenged by respondents 3 and 4 after it attained finality in C.R.P. No. 3440 of 1997 preferred by the said respondents. The Apex Court held "We are of the view that the order passed inter partes in C.R.P. No. 3440 of 1977 dated 2.11.1977 has become final and it concludes the matter." This would be the view of the Supreme Court in the case of P.P. Moideen Koya v. Government of Kerala and Ors. (disposed on 30.9.2004) reported in 2005 (2) PLJR 88 (SC). Paragraph 13 of which in its relevant extract would hold as follows : It is well settled that a decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by law. It is in the interest of the public that finality should attach to the binding decisions pronounced by a Court of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation.... (29.) This Court pursuant to the aforesaid discussion and the judgments of the Supreme Court as noticed would hold in the facts of the present case, that the respondents accepted the finality of the order granting them time till 31.5.1995 to pass final orders. The rejection of their second request for extension of time on 10.11.1995 was not challenged by them and thus attained finality. The Tribunal would in a Misc. application by the petitioner. Shri Pathak, have restrained the respondents on 11.7.1997 from passing any final orders for 14 days. This would have been so done after hearing the respondents through their Counsel yet the respondents would subsequently urge that the final order of punishment would have been passed on 2.7.1997 much prior to the order dated 11.7.1997 and in any event much after 31.5.1995. (30.) An order of a Court can never be directory. They would always have a mandatory character. This Court does not accept the contention of the respondents to the contrary. (31.) This Court would also find that this aspect of the matter was re-agitated on remand but was not considered by the Tribunal in its subsequent order dated 5.2.2003 or in Review Application 11 of 2003 despite the petitioner. Shri Pathak, urging that the aforesaid order dated 5.2.2003 would not reconsider this issue. (32.) Based on the aforesaid discussion this Court arrive at the conclusion that the enquiry report cannot be sustained as it does not record any positive finding of guilt but is based on mere suspicion far lesser than preponderance of probability with no material of corruption or misuse of official position for monetory gain against the petitioner Sri Pathak. The order of compulsory retirement dated 2.7.1997 was clearly contrary to the interdict of the Court. The order in the facts and circumstances of the present case was clearly in illegal order contrary to the orders and directions of a Court of law. In the result, the writ application bearing CWJC No. 6334 of 2004 is allowed. The order of compulsory retirement dated 2.7.1997 is set aside. The petitioner is slated to superannuate in February 2008. He would be entitled to reinstatement in service with 50% of wages with all consequential benefits of seniority. (33.) In view of the aforesaid conclusion, CWJC No. 5681 of 2004 preferred by the Union of India automatically fails. The same is accordingly dismissed. In view of the conclusions arrived hereinabove this Court does not consider it necessary to deal with the other submissions advanced by the parties. (34.) No orders as to costs.
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