Holding

The High Court should not have entertained the writ petition; the appeal is allowed and the High Court order is set aside.

Summary

The Director General of Police suspended P. Chandra MoulI under Rule 8(1)(a) of the Andhra Pradesh Civil Services Rules pending disciplinary proceedings. The employee filed an original application before the Andhra Pradesh Administrative Tribunal, which directed him to first pursue the statutory appeal under Rule 33 before invoking the Tribunal’s jurisdiction under Section 14 of the Administrative Tribunals Act. He then filed a writ petition in the High Court alleging that the suspension was malafide; the High Court examined the merits, set aside the suspension and imposed costs on the police officials. On appeal, the Supreme Court held that the High Court should not have entertained the writ because an alternative remedy was expressly available and the Tribunal had not yet decided the merits. Consequently, the Supreme Court set aside the High Court order and allowed the appeal without awarding costs.

Issues considered

Whether a writ petition challenging a suspension can be entertained when the Administrative Tribunals Act provides an alternative statutory remedy.
Whether the High Court may examine the alleged malafide nature of a suspension order without the Tribunal having first decided the merits.
Whether the suspension under Rule 8(1)(a) of the A.P. Civil Services Rules is valid pending disciplinary proceedings.

Legislation cited

Administrative Tribunals Act, 1985s. 14, s. 20

Subjects

suspensionadministrative tribunalalternative remedymalafideservice lawdisciplinary proceedingswrit petitionjurisdictionnatural justice

Judgment

[2009] 6 S.C.R. 374

A THE GOVT. OF A.P. & ORS.
v.
P. CHANDRA MOULI & ANR.
(Civil Appeal No. 2588 of 2009)
APRIL 16, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]

Service Law - Suspension - A.P. Civil Services
C (Classification, Control and Appeal) Rules 1991 - rr.8 and 33
- Suspension of employee pending conclusion of disciplinary ,
proceedings - Employee filed O.A. before Tribunal which
directed him to avail the alternative remedy of appeal, before
invoking the jurisdiction of Tribunal - Employee fiied writ
D petition against the order of Tribunal - High Court allowed the
petition by going into merits of the case and set aside the
order of suspension holding the same to be malafide - On
appeal, held: It was not a case where alternative remedy could
be avoided - The Tribunal had not considered the case on
E merits and had only directed the employee to avail statutory
remedy, hence, the High Court could not have gone into
detailed examination of the alleged malafides of the
suspension order - High Court should not have entertained
. the writ petition when the Tribunal had disposed of the O.A.
F only on ground of availability of alternative remedy -
Administrative Tribunals Act, 1985 - ss. 14 and 20- Remedy
- Alternative remedy.

Based on the report of Dy. Commissioner of Police
as forwarded by the Commissioner of Police, the Director
G General of Police (DGP) placed respondent no.1 under
suspension pending conclusion of disciplinary
proceedings under r.8(1 )(a) of the A.P. Civil Services
(Classification, Control and Appeal) Rules 1991.
Aggrieved, respondent no.1 filed O.A. before the Tribunal
H 374
GOVT. OF A.P. & ORS. v. P. CHANDRA MOUL! & 375
ANR.
- which directed him to avail the alternative remedy of
appeal under r.33, before invoking the jurisdiction of the
A

Tribunal under s.14 of the Administrative Tribunals Act.

Respondent no.1 filed writ petition against the order
of Tribunal. High Court allowed the petition by going into
8
the merits of the case and set aside the order of
suspension holding the same to be malafide. Hence the
present appeal.

Allowing the appeal, the Court
c
HELD: 1.1. The High Court ought to have noticed
that this was not a case where alternative remedy could
be avoided. It was necessary, as rightly observed by the
Tribunal, for respondent no.1 to avail alternative remedy.
Further the High Court has considered the plea of 0
malafides in writ petition. The Tribunal had not
- t considered the case on merits. It had only directed the
respondent No.1 to avail statutory remedy. That being so -
it was certainly not open to the High Court to go into a
detailed examination of the alleged malafides. [Para 8] E
[379-C]

. 1.2. It is not a case where the High Court should have
·entertained the writ petition when the Tribunal had
: disposed of the O.A. only on the ground of availability of
alternative remedy. [Para 14] [382-A] F

Union of India v. Ashok Kumar & Ors. 2005 (8) SCC 760;
Gu/am Mustafa and Ors. v. The State of Maharashtra and Ors.
1976 (1) SCC 800; Mid/ey Minerals India Ltd. v. State of
Orissa 2004 (12)SCC 39; Indian Oil Corpn. Ltd. v. Ashok G
Kumar Arora 1997 (3) SCC 72 and La/it Popli v. Canara Bank
2003 (3) sec 583, referred to.
Case Law Reference:
2005 (8) sec 760 referred to Para 9 H
376 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 1976 (1) sec 800 referred to Para 10 .-1, -
2004 (12) sec 39 referred to Para 11
1997 (3) sec 12 referred to Para 13
2003 (3) sec 583 referred to Para 13
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2588 of 2009.
;. .........
From the Judgment~ Order dated 24.03.2005 of the High
c Court of Judicature of Andhra Pradesh at Hyderabad in Writ
Petition No. 4247 of 2005. ·

R. Sundaravardhan and D. Bharathi Reddy for the
Appellants.
l
I
D D. Rama Krishna Reddy, T. Anamika and D. Mahesh
Babu for the Respondents. 1 -

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.
E
2. Challenge in this appeal is by the State of Andhra
Pradesh questioning the judgment passed a Division Bench of
the Andhra Pradesh High Court allowing the writ petition filed
by the respondent No.1. The proceedings initiated by the ~-

F Director General of Police (in short the · DGP') placing
respondent No. 1 under suspension pending conclusion of
disciplinary proceedings were quashed. Cost of Rs.10,000/-
was imposed to be paid by the DGP and the Commissioner
of Police.
G
3. Background facts in a nutshell are as follows: ......
On 17.1.2005 the then Commissioner of Police, --
Hydrabad, respondent No.2 herein had relieved the respondent
No.1 from the post of Assistant Commissioner of Police,
H
-" GOVT. OF A.P. & ORS. v. P. CHANDRA MOUL! &

of DGP.
ANR. [DR. ARIJIT PASAYAT, J.]
377

Banjara Hills, Hyderabad and directed him to report in the office A

On 26.1.2005 Respondent No. 1 filed O.A. bearing No.
413 of 2005 before the A.P. Administrative Tribunal,
Hyderabad (in short the 'Tribunal') in which the Director General
B
of Police, Commissioner of Police and Dy. Commissioner of
Police, Hyderabad were pleaded as respondents. The present
""'"" -4 respondent No.2 was not impleaded.

On 1.2.2005 the Director General Police -placed the
respondent No.1 under suspension pending departmental c
proceedings under Rule 8 (1 )(a) of the A.P. Civil Services
(Classification, Contrcl and Appeal) Rules 1991 (in short the
'Rules') basing on the report of Dy. Commissioner of Police,
West Zone, dated 24.1.2005 which was forwarded to the
Director General of Police by the then ~ommissioner of Police. D
- 'f
On 03.02.1005 the Tribunal issued notice in the above O.A.
No.413 of 2005, filed by the Respondent no.1 herein.

On 10.2.2005 .the Respondent No.1 had also filed a
separate O.A. No.589/ 2005 before the Tribunal to which the E
State of Andhra Pradesh, the respondent No.2 by name was
impleaded as respondents besides the Director General of
Police, Commissioner of Police and Dy. Commissioner of
~~
Police, West Zone were also impleaded as respondents.
F
On 24.02.2005 Tribunal disposed of O.A. No. 589 of 2005
filed by the Respondent No.1 directing him to avail the
alternative remedy of appeal against the order dated 1.2.2005
passed by the Director General of Police under Rule 33 of the
Rules, before invoking the jurisdiction of the Tribunal under
- ~ Section 14 of the Administrative Tribunals Act (in short the
'Act') as it is mandatory under Section 20 thereof.
G

On 02.03.2005 the Respondent No.1 herein had filed a writ
of Mandamus in W.P. No. 4247 of 2005 in the High Oourt of
Andhra Pradesh against the order dated 24.2.2005 in O.A. No. H
378 SUPREME COURT REPORTS [2009] 6 S.C.R.

A 589 of 2005 in which notice was issued only to the Director ~-
General of Police.

On 7.3.2005 in reply to the said show cause notice, the
Director General of Police filed a detailed counter affidavit on
7.3.2005.
B
On 24.3.2005 High Court by its impugned judgment and
order has allowed the Writ Petition No. 4247 of 2005 filed by
the 1st respondent for a Writ of Mandamus by going into the
merits of the case and setting aside the order of suspension
C dated 1.2.2005 passed by the Director General of Police and
imposed Rs.10,000/- as costs on the Director General of
Police and Commissioner of Police holding that it was malafide.
According to appellants the order was passed without even
issuing notice and providing an opportunity of hearing to other
D respondents i.e. Commissioner of Police and Dy.
Commissioner of Police, West Zone, Hyderabad.

4. According to learned counsel for the appellant-State the
order passed by the High Court is clearly unsustainable. The
suspension order was in order and without any foundation,
E malafide has been concluded.

5. Learned counsel for the respondent No.1 supported the
judgment of the High Court.

6. It is to be noted that no notice was issued to the DGP
F
to have any say in the matter. Only the Commissioner of Police
was made respondent and the DGP was also not impleaded
by name but by official designation. The writ petition was
allowed on the ground that the order-of suspension was not
G bonafide and was tainted with inference of malafides. It appears
that a charge memo was issued for taking disciplinary action
and the respondent No.1 has submitted a reply that a
suspension order containing some allegation has been set
aside by the High Court and therefore there is nothing further
to be Clone.
H
-
GOVT. OF A.P. & ORS. v. P. CHANDRA MOULI & 379
ANR. [DR. ARIJIT PASAYAT, J.]

7. It further appears that the respondent No.1 challenged A
the charge memo dated 6.2.2005 before the Andhra Pradesh
Administrative Tribunal. The same was dismissed for default
on 13.9.2008. On 31.3.2008 respondent no.1 has been allowed
to retire without prejudice to the pendency of the disciplinary
proceedings. B

8. The High Court ought to have noticed that this was not
a case where alternative remedy could be avoided. It was
necessary, as rightly observed by the Tribunal in the first
, occasion, for respondent No.1 to avail· alternative remedy. C
Further the High Court has considered the plea of malafides
in writ petition. The Tribunal had not considered the case on
merit. It had only directed the respondent No.1 to avail Statutory
remedy. That being so it was certainly not open to the High
Court to go into a detail examination of the alleged malafide. D

9. In Union of India v. Ashok Kumar & Ors. [2005(8) SCC
760] it was inter a/ia noted as follows:

"Doubtless, he who seeks to invalidate or nullify any
act or order must establish the charge of bad faith, an E'
abuse or a misuse by the authority of its powers. While the
indirect motive or purpose, or bad faith or personal ill-will
is not to be held established except on clear proof thereof,
it is obviously difficult to establish the state of a man's mind,
for that is what the employee has to establish in this case, • F
though this may sometimes be done. The difficulty is not
lessened when one has to establish that a person
apparently acting on the legitimate exercise of power has,
in fact, been acting ma/a fide in the sense of pursuing an
illegitimate aim. It is not the law that ma/a fide in the sense G
of improper motive should be established only by direct
evidence. But it must be discernible from the order
impugned or must be shown from the established
surrounding factors which preceded the order. If bad faith
would vitiate the order, the same can, in our opinion, be
deduced as a reasonable and inescapable inference from H
380 SUPREME COURT REPORTS [2009] 6 S.C.R.
'
:
,...
~
A proved facts. (S. Pratap Singh v. State of Punjab AIR 1964
SC 72). It cannot be overlooked that burden of
establishing ma/a tides is very heavy on the person who
alleges it. The allegations of mala fides a often more easily
made than proved, and the very seriousness of such
B allegations demand proof of a high order of credibility. As
noted by this Court in E. P. Royappa v. State of Tamil
Nadu and Another (AIR 1974 SC 555), Courts would be
slow to draw dubious inferences from incomplete facts ~ -
pl~ced before it by a party, particularly when the imputatio_ns

c are grave and they are made against the holder of an office
which has a high responsibility in the administration. (See
Indian Railway Construction Co. Ltd. v. Ajay Kumar 2003
(4) sec 579)."

10. As observed by this Court in Gu/am Mustafa and Ors.
D v. The State of Maharashtra and Ors. (1976 (1) SCC 800)
mala fide is the last refuge of a losing litigant. . ~

11. In Midley Minerals India Ltd. v. State of Orissa
[2004(12) sec 39] it was inter alia observed as follows:
E
"We are unable to accept the contention of the
learned counsel for the 4th respondent that the action of
the State Government was vitiated by mala fides. It is trite
that plea of mala fides has to be specific and
~ .
F. demonstrable. Not only this, but the person against whom
the mala fides are alleged must be made a party to the
proceedings and given reasonable opportunity of hearing.
We find no such attempt made in the writ petition before
the High Court. At the highest even putting the most liberal
construction on the writ petition, what was alleged was a
G contravention of the Rules and, consequently, legal mala
fides and nothing beyond that. The argument of mala fides • ,_
must therefore fail. Next, it is urged by the learned counsel
for the respondent that it is an elementary principle of law
that an individual shareholder of a company cannot be
H considered as equivalent to the company, for company has
GOVT. OF AP. & ORS. v. P. CHANDRA MOULI & 381
ANR. [DR. ARIJIT PASAYAT, J.]
a distinct legal personality. Consequently, he contends that · A
the application made by Jitendra Kumar Lohia could not
have enured to the benefit of the appellant company.
According to him, Jitendra Kumar Lohia and the api;iellant
being two distinct legal entities, the assumption of the State
Government, that the application for renewal of the quarry B
lease could be treated as a continuation of Jitendra Kumar
Lohia's application, was erroneous and unsustainable in
law. We are unable to accept this contention. We have
highlighted as to how the St~te Government and Jitendra
Kumar Lohia treated the application for renewal of quarry c .
lease made by Jitendra Kumar Lohia as enduring to the
benefit of the appellant company. If the State Government
had treated them to be separate legal entities, there was
no question of imposing a condition on the appellant that
the transfer of the lease was granted on the specific D
condition that J_itendra Kumar Lohia and. his family
members hold the controlling interest in the company. The
facts and circumstances belie this contention of the learned
counsel for the fourth respondent. It cannot be accepted."

12. A9ded to that a writ petition was filed on 2.3.2005 and · E
notice was issued only to the DGP (not by name but by official
designation) but the allegations of malafides were made in his
personal name. The reply was filed on 7.3.2005 and the
impugned order was passed on 24.3.2005.
F
13. It is trite that the power of punishment to an employee
is within the discretion of the employer and ordinarily the courts
do not interfere, unless it is found that either the enquiry,
proceedings or punishment is vitiated because of non-
observance of the relevant rules and regulations or principles G
of natural justice or denial of reasonable opportunity to defend,
etc. or that the punishment is totally disproportionate to the
proved misconduct of an employee. All these principles have
been highlighted in Indian Oil Corpn. Ltd. v. Ashok Kumar
Arora (1997(3) SCC 72) and La/it Popli v. Canara Bank H
382 SUPREME COURT REPORTS [2009] 6 S.C.R.

A (2003(3) sec 583).

14. It is not a case where the High Court should have
entertained the writ petition when the Tribunal had disposed of
the OA only on the ground of availability of alternative remedy.
The impugned order is set aside. We make it clear that we
8
have not expressed any opinion on the merits of the case.

15. The appeal is allowed with no order as to costs.

8.8.8. Appeal allowed.