TaxTMI 
TaxTMI 
2003 (2) TMI 491
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....n was lodged with police. The order was passed in respect of two employees, the present appellant and one Mr. V.K. Talwar. It was pointed out in the order of dismissal that it would not be practicable to hold an enquiry before directing dismissal. The respondent employee, on the other hand, alleged that the order of dismissal was the outcome of victimization. He took a stand in the writ petition filed before the Delhi High Court that because of union activities, he had become an eyesore of the management, and the order of dismissal without holding an enquiry was violative of law and was at variance with the requirements of Article 311(2) of the Constitution of India. 1950 (in short 'the Constitution'). Learned Single Judge was of the view that in a given case, enquiry can be dispensed with; but the case at hand was not of that nature. It was further held that the protection under Article 311(2) was available and non- observance of the procedure vitiated the order of dismissal. The matter was challenged in Letter Patents Appeal before the Division Bench of the Delhi High Court by the present appellant. It was submitted that there was no scope for judicial review of the....
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.... misconduct, which had adversely affected the image and reputation of the employer as the incident took place in the presence of valued customers, some of whom were foreign customers. If the High Court felt that the dismissal was untenable in the absence of enquiry at the most it could have directed enquiry before dismissal order was effectuated. The dismissal order could not have, in any event, been set aside without any such direction. These aspects have also to be considered along with the plea relating to loss of confidence. In response, learned counsel for the respondent, employee submitted that the facts are tellate and the background highlighted by the respondent in the writ petition clearly shows that management was bent upon dismissing him for his union activities. That was sufficient to prove mala fides and even if no particular person was impleaded, the management acted in unison through some, of its officers for his dismissal from employment. It was submitted that the High Court was correct in holding that the order of dismissal was illegal. It was submitted that though there was no assertion in the writ petition that the alleged incident did not take place, the s....
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....or the appellant fairly submitted that merely because the enquiry would have taken some time, same cannot be a ground for dispensing with enquiry He, however, highlighted other grounds i.e. as contained in clause (a) above. According to him, the aggressive and violent manner in which employee were threatened leads to an irresistible conclusion that witnesses would not have come forward to give evidence during the course of enquiry. Such a conclusion would not be a valid ground for dispensing with enquiry in all cases. If there is material with the concerned authority that there is likelihood of witnesses not coming forward due to threats, coercion, undue influence etc. certainly it would, be a germane ground for dispensing with enquiry, and to hold that it would not be possible to hold a fair enquiry. Except making a bald statement that charged employee can indulge in intimidating and violent acts persons would not come forward, there is no other material. On the basis of a presumptuous conclusion, the concerned authority should not have dispensed with enquiry. As indicated above, if there exists material and basis for coming to a conclusions, same has to be specifically dealt with....
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....interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of Government activities in which the repositories of power may exercise every class of statutory function of executive, qusai-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary See State of U.P. and Ors. v. Renusagar Power Co. and Ors., AIR [1988] SC 1737. At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work "Judicial Review of Administrative Action" 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which i....
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....ction have been summed up by Grahame Aldows and John Alder in their book "Applications for Judicial Review, Law and Practice" thus: "There is a general presumption against ousting the jurisdiction of the Courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradigm which the Courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the government's claim is bonafide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in council of Civil Service Unions v. Minister for the Civil Service this is doubtful. Lords Diplock, Seaman and Roskili appeared to agree that there is no general distinction between poweres, based upon whether their source is statutory or Prerogative but that judicial review can be limited by the subject matter of a particular power, in that case national security. Many prerogative powers are in fa....
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....) ".....it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable...........The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another." (emphasis supplied). Therefore, to arrive at a decision on "reasonableness" the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bonafide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view. The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in CCSU case as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a pr....
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....h the charge of bad faith, an 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, 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 malafide in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense 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 proved facts. (See S. Pratap Singh v. The State of Punjab, [1964] 4 SCR 733). It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made ....
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.... the establishment. Unless an atmosphere of cordiality exists there is likelihood of inefficient working and that would not be in the interest of the establishment and would be rather destructive of common interest of both employer and employees. If an act or omission of an employee reflects upon his character, reputation, integrity or devotion to duty or it an unbecoming act, certainly the employer can take action against him. In this context, reference may be made to the following observations of Lopes C.J. In Perce v. Foster, (1866) 17 QBD 536, p. 542): "If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant." This view was re-iterated by a three-Judge Bench of this Court in Uni....