PUNJAB STATE POWER CORPORATION LTD. PATIALA & ORS.versusATMA SINGH GREWAL

                   [2013] 10 S.C.R. 155


PUNJAB STATE POWER CORPORATION LTD. PATIALA                     A
                  & ORS.
                             v.
                 ATMA SINGH GREWAL
    (Special Leave Petition (Civil) No. 29589 of 2009)
                  SEPTEMBER 17, 2013                            B

     [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

    GOVERNMENT LITIGATION:

     Frivous and vexatious litigation by State Power
                                                                c
Corporation ...; Division Bench of High Court imposing cost on
appellant-Corporation to be recovered from the Officer who
authorised filing of appeal - Held: Since appeal preferred by
Corporation was totally frivolous, High Court has rightly
                                                                 0
awarded the cost - In spite of Governmenfs_ QVillJ!Olicy and
reprimand from Supreme Court on numerous occasions,
there is no significant positive effect on various Government
officials who continue to take decision to file frivolous and
vexatious appeals - It imposes unnecessary burden on
courts-The opposite party which has succeeded in the court E
below is also made to incur avoidable expenditure - Further,
it causes delay in. allowing the successful litigant to reap the
fruits of the judgment rendered by the court below -
Imposition of cost on State!PSUs alone is not going to make
much difference, as officers taking such irresponsible F
decisions to file appeals are not personally affected because
cost, if imposed, comes from government's coffers - Time
has, therefore, come to take next step, viz., recovery of cost
from such officers who take such frivolous decisions of filing
appeals even after knowing well that these are totally G
vexatious and uncalled for appeals - It is clarified that such
an order of recovery of cost from officer concerned be passed
only in those cases where appeal is found to be ex-facie

                             155                                H
    156      SUPREME COURT REPORTS                [2013] 10 S.C.R.

A frivolous and the decision to file appeal is also found to be
    palpably irrational and uncalled for - Punjab Civil Service
    Rules - r. 2.2(B), second proviso - Costs - National
    Litigation Policy, 2010 of Government of India.

          ADMINISTRATIVE LAW:
B
           Frivolous litigation - By State/its instrumentality - Cost
    to be recovered from Officer(s) who authorise filing of such
    litigation.

c      Gurgaon Gramin Bank vs. Khazani 2012 (8) SCR 225             =
  (2012) 8 SCC 781; Mundrika Prasad Singh vs. State of Bihar
  1980 (1) SCR 759 = 1979 (4) SCC 701; Urban Improvement
  Trust, Bikaner v. Mohan Lal 2009 (15) SCR 550 = 2010 (1)
  SCC 512; Rameshwari Devi and Ors. vs. Nirmala Devi and
                             =
D Ors. 2011 (8) SCR 992 (2011) 8 SCC 249 - referred to.

         126th Report (1988) of the Law Commission of India;
    54th Report (1973) of Law Commission of India; and National
    Litigation
     .
               Policy, 2010 formulated by Central
                                            .    . Government

E                         Case Law Reference:
          2012 (8) SCR 225         referred to            para 7
          1980 (1) SCR 759         referred to            Para 8
          2009 (15) SCR 550        referred to            para 13
F
          2011 (8) SCR 992         referred to            para 15
        CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
    29589 of 2009.

G       From the Judgment & Order dated 20.08.2009 of the High
    Court of Punjab & Haryana at Chandigarh in LP.A. No. 752 of
    2009 (O&M).

          Harinder Mohan Singh for the Petitioners.
H
    PUNJAB STATE POWER CORPORATION LTD. .                    157
        PATIALA v. ATMA SINGH GREWAL
     ('>.. Venayagam Balan for the Respondent.                       A

     The Order of the Court was delivered by

                            ORDER

       1. Petitioner No. 1 is the Punjab State Electricity Board     B
 (PSEB); Petitioner No. 2 is the Chief Engineer, HRD-cum-
 lnquiry Officer and Petitioner No. 3 is the Senior Executive
 Engineer working in PSEB. Respondent was the employee of
 PSEB who retired from service, with effect from 30.4.2004. He
·had given the notice on 27.2.2004 for voluntary retirement which    C
 was accepted. As a result, the respondent stood voluntary
 retired from 30.4.2004. However, almost 4 years· after his
 retirement i.e. on 7.1.2008, the respondent was served with the
 charge sheet levelling certain allegations against him, allegedly
 committed between 15.5.2002 to 3.12.2002. These charges             o
 which. were for the period May 2002 to. December 2002 were
 obviously of a period much earlier than 4 years before the
 serving of the charge sheet dated 7.1.2008 and much after his
 retirement when he had ceased to be the employee of PSEB.

      2. The Respondent filed the Writ Petition in the High Court    E
 seeking quashing of the said charge sheet on the ground that
 it was barred in view of Rule 2.2.(B) of the Punjab Civil Service
 Rules 2 reserves right with the Government to withhold or
 withdraw a pension or a part of it under certain circumstances
 viz. when in judicial proceedings or departmental proceedings,      F
 such an employee is found to have committed grave misconduct
 or negligence. It also provides for recovery of peculiar loss, if
 caused. However, second proviso to the aforesaid provision
 stipulates the time limit within which the departmental inquiry
 can be instituted, in respect of an ex-employee if it was not       G
 stated while such a Government officer was in service. The
 precise language of second proviso is as follows:-

      "Such departmental proceedings, if not instituted while the
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    158       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A         officer was in service whether before his retirement or
          during his re-employment:-

          (i) shall not be instituted save with the sanction of -the
          Government;
B        (ii) shall not be in respect of any event which took
         place more than four years before such institution;
         and if he has retired, the event should not be more
       · than 4 years old.

c         (iii) shall be conducted by such authority and in such place
          as the Government may direct and in accordance with the
          procedure applicable to departmental proceedings in
          which an order of dismissal from service could be made
          in relation to the officer during his service.
D       3. In the. present case since the changes were of the year
  2002 and charge sheet served in the year 2008, it was manifest
  that the alleged event took place much more than 4 years before
  the serving of charge sheet and after his retirement. In this
  ground the learned Single Judge quashed the said chargesheet
E dated 7 .1.2008. The petitioners chose to file appeal before the
  Division Bench which has also been dismissed by the Division
  Bench vide impugned judgment dated 20.8.2009.

         4. After hearing the Counsel for the parties we are of the
F · opinion that in view of aforesaid admitted facts, second proviso
    of Rule 2 states at the face of the petitioner and no fault can
    be found in the judgment of the High Court.

       5. Virtually accepting the aforesaid position the learned
  Counsel for the petitioner made a fervent plea the costof Rs,
G 10,000/- which the Division Bench of the High Court has
  imposed upon the PSEB, with direction that PSEB shall
  recover the same from the officer who authorised the filing of
  the said appeal. He submitted that in any case such a direction
  for recovery of the amount from the concerned officer should
H be done away with.
   PUNJAB STATE POWER CORPORATION LTD.                         159
       PATIALA v. ATMA SINGH GREWAL .
     6. The reason given by the High Court while imoosing the          A
cost is as under:
     "This is yet another instance of a frivolous appeal filed at
     the hands of a statutory body. There was absolutely no
     merit and no cause to file the instant appeal. Despite the
     same, the Punjab State Electricity Board, chose to prefer         B
    .the instant appeal without application of mind. In this case,
     the Punjab State Electricity Board has not only incurred
     unnecessary expenses, but also wasted precious Court
     time.
     In view of the above, we are of the view, that the instant
                                                                       c
   . appeal deserves to be dismissed with costs. The instant
     appeal is, accordingly, dismissed with costs quantified at
     Rs. 10,000/-. the aforesaid costs shall not be borne by the
     Electricity Board, but shall be recovered from the officer
     who authorized the filing of the instant appeal. The              0
     aforesaid. costs shall, in the first instance, be deposited by
     the appellant with the Legal Services Authority, Punjab,
     within one month from today. The recovery thereof shall be
     made from the concerned officer within a further period of
     two months.                                                       E
    In case, the aforesaid recovery is made from an officer
    who feels that the actual' responsibility for filing the instant
    appeal rested on the shoulders of some other officer, it
    would be open to such officer to approach this Court by
                                                                       F
    moving a civil miscellaneous application (in the instant
    Letters Patent Appeal) so as to require this Court to
    determine the accountability of the officer concerned".
     Since the provisions of the aforesaid statutory rule are
crystal clear, we are in agreement with the High Court that the        G
appeal preferred by t_he petitioners was totally frivolous.
Therefore, the High Court has rightly awarded the cost while
dismissing such a merit less appeal. The only question is of
recovery of this cost from the officer who authorised the filing
of the said appeal.                                                    H
    160       SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A        7. Here we may note that the Courts are burdened with
    unnecessary litigation primarily because of the reason that the ·
    Government or PSUs etc. decide to file the appeals even when
    there is absolutely no merit therein. Commenting on such a
    tendency to file frivolous appeals, this Court in a recent judgment
8   in a case of Gurgaon Gramin Bank v. Khazani; (2012) 8 sec
    781, speaking through one of us (K.S. Radhakrishnan, J.)
    expressed its discomfiture in the following words:

          "The number of litigations in our country is on the rise, for
          small and trivial matters, people and sometimes the
c         Central and the State Governments and their
          instrumentalities like banks, nationalised or private, come
          to Courts may be due to ego clash or to 'save the officers
          skin. The judicial system is overburdened which naturally
          causes delay in adjudication of disputes. Mediation
D         Centres opened in various parts of our country have, to
          some extent, eased the burden of the courts but we are
          still in the tunnel and the light is far away. On more than on
          occasion, this Court has reminded the Central
          Government, the State Governments and other
E         instrumentalities as well as to the various banking
          institutions to take earnest efforts to resolve the disputes
          at their end. At times, some give and take attitude should
          be adopted or both will sink. Unless serious questions of
          law of general importance arise for consideration or a
F         question which affects a large number of persons or the
          stakes are very high, the courts jurisdiction cannot be
          invoked for resolution of small and trivial matters. We are
          really disturbed by the manner in which those types of
          matters are being brought to courts even at the level of the
          Supreme Court of India and this case falls in that
G
          category".

      8. It is not the first time that the Coyrt had to express its
  anguish. We would like to observe that the mind set of the
  Government agencies/ undertakings in filing unnecessarily
H appeals was taken note of by the l-aw Commission of India
   PUNJAB STATE POWER CORPORATION LTD.                        161
       PATIALA v. ATMA SINGH GREWAL
way back in 1973, in its 54th report. Taking cognizance of the       A
aforesaid report of the Law Commission as well as National
Litigation Policy for the States which was evolved at an All India
Law Ministers Conference in the year 1972, this Court had to
emphasize that there should not be unnecessary litigation or
appeals. It was so done in the case of Mundrika Prasad Singh         B
v. State of Bihar; 1979 (4) SCC 701. We would also like to
reproduce the following words of wisdom expressed by Justice
V.R. Krishna Iyer, who spoke for the Bench, in Dilbagh Rai
Jarry v. Union of India and Ors.; 1974 (3) SCC 554.

      "But it must be remembered that the State is no ordinary
                                                                     c
      party trying to win a case against one of its own citizens
      by hook or by crook; for the State's interest is to meet
      honest claims, vindicate a substantial defence and never
      to score a technical point or overreach a weaker party to
      avoid a just liability or secure an unfair advantage, simply   D
      because legal devices provide such an opportunity. The
      State is a virtuous litigant and looks with unconcern on
      immoral forensic successes so that if on the merits th~
      case is weak, government shows a willingness to settle the
      dispute regardless of prestige and other lesser motivations    E
      which move private parties to fight in court. The lay out on
      litigation costs and executive time by the State and its
    . agencies is so staggering these days because of the large
      amount of litigation in which it is involved that a positive
      and wholesome policy of cutting back on the volume of law      F
      suits by the twin methods of not being tempted into forensic
      show downs where a reasonable adjustment is feasible
      and ever offering to extinguish a pending proceeding on
      just terms, giving the legal mentors of government some
      initiative and authority in this behalf.                       G

    9. In its 126th Report (1988), the Law Commission of India
adversely commented upon the reckless manner: in which
appeals are filed routinely. We quote hereunder the relevant
passage therefrom:
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    162       SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A         "2.5. The litigation is thus sometimes engendered by failing
          to perform duty as if discharging a trust. Power inheres a
          kind of trust. The State enjoys the power to deal with public
          property. That power has to be discharged like a trust
          keeping in view the interests of the cesti que trust. Failure
B         on this front has been more often commented upon by the
          court which, if it was taken in the spirit in which it was
          made, would have long back energised the Government
          and the public sector to draw up its litigation policy. When
          entirely frivolous litigation reaches the doorsteps of
c         the Supreme Court, one feels exasperated by the
          inaction and the policy to do nothingness evidenced
          by. blindly following litigation from court to court.
          Dismissing a Special Leave Petition by the State of
          Punjab, the Court observed that the deserved defeat of the
          State in the courts below ~emonstrates the gross
D
          indifference of the administration towards litigative
          diligence. The court then suggested effective remedial
          measures. It may be extracted:
                 We would like to emphasize that Government must
E                be.made accountable by parliamentary Social audit
                 for wasteful litigative expenditure inflicted on the
                 community by inaction. A statutory notice of the
                 proposed action under section 80CPC is intended
                 to alert the state to negotiate a just settlement or at
F                least have the courtesy to tell the potential outsider
                 why the claim is being resisted. Now section 80
                 has become a ritual because the administration is
                 often unresponsive and hardly lives up to the
                 parliament's expectation in continuing section 80 in
G                the Code despite the Central Law Commission's
                 recommendations for its deletion. An opportunity_ for
                 setting the dispute through arbitration was thrown
                 away by sheer inaction. A litigative policy for the
                 State involves settlement of governmental disputes
                 with citizens in a sense of conCiliation rather than
H
       PUNJAB STATE POWER CORPORATION LTD.                        163
           PATIALA v. ATMA SINGH GREWAL
               .in a fighting mood. Indeed, it should be a A
                directive on the part of the State to empower
                its law offic'er to take steps to compose
                disputes rather than continue them in court.
                We are ·constrained to make these
                observations because much of the litigation in B
                which governments are involved adds to the _
                case load accumulation in courts for which
                there is public criticism. We hope that a more
                responsive spirit will be brought to bear upon
                governmental litigation so as to avoid waste of c
                public money and promote expeditious work in
                courts of cases which deserve to be attended to.
        Nearly a decade has passed since the observations but
        not a leaf has turned, not a step has been taken, and the
        Law Commission is asked to deal with the problem.                 D
        2.6. A little care, a touch of humanism, a dossier of
        constitutional philosophy and awareness of futility of
•       public litigation would considerably improve the
        situation which today is distressing. More often it is            E
        found that utterly unsustainable contentions are taken on
        behalf of Government and public sector undertakings."
         10. Even when Courts have, time and again, lamented
    about the frivolous appeals filed by the Government authorities,
    it has no effect on the bureaucratic psyche. It is not that there     F
    is no realisation at the level of policy makers to curtail unwanted
    Government litigation and there are deliberations in this behalf
    from time to time. Few years ago only, the Central Government
    formulated National Litigation Policy, 2010 with the "vision/
    mission". to transform th~ Government into an efficient and           G
    responsible litigant. This policy formulated. by the Central
    Government is based on the recognition that it was its primary
    responsibility to protect the rights of citizens, and to respect
    their fundamental rights and in the process it should become
    "responsible litigant". The policy even defines the expression
                                                                          H
    'responsible litigant' as under:-
    164      SUPREME COURT REPORTS                  [2013] 10 S.C.R.


A         "Responsible litigant" means
                 That litigation will not be resorted to for the sake of
                 litigating.
                 That false pleas and technical points will not be
8                taken and shall be discouraged.
                 Ensuring that the correct facts and all relevant
                 documents will be placed before the Court.
                 That nothing will be suppressed from the Court and
c                there will not attempt to mislead any court or·
                 tribunal.
          That Government must cease to be a compulsive litigant.
          The philosophy that matters should be left to the courts for
          ultimate decision has to be discarded. The easy approach,
D         "Let the Court decide", must be eschewed and
          condemned.
          The purpose underlying this policy is also to reduce
          government litigation in courts so that valuable court time
          would be spent in resolving other pending cases so as to
E
          achieve the goal in the national legal mission to reduce
          average pendency time from 15 years to 3 years.
          Litigators on behalf of the Government have to keep in mind
          the principles incorporated int eh national mission for
          judicial reforms which includes identifying bottlenecks
F         which the Government and ifs agencies may be concerned
          with and also removing unnecessary government cases.
          Prioritisation in litigation has to be achieved with particular
          emphasis on welfare legislation, social reform, weaker
G         sections and senior citizens and other categories requiring
          assistance must be given utmost priority".
       11. This policy recognises the fact that its success will
  depend upon its strict implementation. Pertinently there is even
  a provision of accountability on the part of the officers who have
H to take requisite steps in th1s behalf.        ·
   PUNJAB STATE POWER CORPORATION LTD.                         165
       PATIALA v. ATMA SINGH GREWAL
     12. The policy also contains the provision for filing of         A
appeals indicating as to under what circumstances appeal
should be filed. In so far as service matters are concerned, this
provision lays down that further proceedings will not be filed in
service matters merely because the order of the Administrative
Tribunal affects a number of employees. Also, appeals will not        B
be filed to espouse the cause of one section of employees
against another.

      13. The aforesaid litigation policy was seen as a silver
living to club unnecessary and uncalled for litigation by this        C
Court in the matter of Urban Improvement· Trust, Bikaner v.
Mohan Lal; 2010 (1) SCC 512 in the following manner:-

    "The Central Government is now attempting to deal with
    this issue by formulating realistic and practical norms for
    defending cases filed against the Government and for filing       D
    appeals and revisions against adverse decisions, thereby
    eliminating unnecessary litigation. But it is not sufficient if
    the Central Government alone undertakes such an
    exercise. The State Governments and th4e statutory
    authorities, who have more litigations than the Central           E
    Government, should also make genuine efforts to eliminate
    unnecessary litigations. Vexatious and unnec~ssary
    litigations have been clogging the wheels of justice for too
    long, making it difficult for courts and tribunals to provide
    easy and speedy access to justice to bona fide and needy          F
    litigants".

     14. Alas, inspite of the Government's own policy and
reprimand from this Court, on numerous occasions, there is no
significant positive effect on various Government officials who
continue to take decision to file frivolous and vexatious appeals.    G
It imposes unnecessary burden on the Courts. The opposite
party which has succeeded in the Court below is also made to
incur avoidable expenditure. Further, it causes delay in allowing
the successful litigant to reap the fruits of the judgment rendered
by the Court below.                                                   H
                                                                          -
    166       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A        15. No doubt, when a case is decided in favour of a party,
    the Court can award cost as well in his favour. It is stressed by
    this Court that such cost should be in real and compensatory
    terms and not merely symbolic. There can be exemplary costs
    as well when the appeal is completely devoid of any merit. [See
B Rameshwari Devi and Ors. v. Nirmala Devi and Ors.; (2011)
    8 SCC 249]. However, the moot question is as to whether
    imposition of costs alone will prove deterrent? We don't think
    so. We are of the firm opinion that imposition of cost on the
    State/ PSU's alone is not going to make much difference as
c   the officers taking such irresponsible decisions to file appeals
  · are not personally affected because of the reason that cost, if
    imposed, comes from the government's coffers. Time has,
    therefore, come to take next step viz. recovery of cost from s.uch
    officers who take such frivolous decisions of filing appeals,
    even after knowing well that these are totally vexatious and
0
    uncalled for appeals. We clarify that such an order of recovery
    of cost from the concerned officer be passed only in those
    cases where appeal is found to be ex-facie frivolous and the
    decision to file the appeal is also found to be palpably irrational
    and uncalled for.
E
         16. In a case like the present, where the conc.erned officer
    took the decision to file the appeal, direction of the High Court
    to recover the cost from him cannot be faulted with. Sense of
    responsibility would drawn on such officers only when they are
F made to pay the costs from their pockets, instead of burdening
    the exchequer.

           17. We are, therefore, not inclined to recall the aforesaid
  direction of the High Court to recover the cost from the officer
G concerned.
           18. Dismissed with further cost of Rs. 10,000/-.

    R.P.                                             SLP dismissed.