Mool Chandra Vs. Union of India & Anr - It is not the length of delay that would be required to be considered while examining the plea for condonation of delay, it is the cause for delay which has been propounded will have to be examined. If the cause for delay would fall within the four corners of “sufficient cause”, irrespective of the length of delay same deserves to be condoned. However, if the cause shown is insufficient, irrespective of the period of delay, same would not be condoned.

  SCI (2024.08.05) in Mool Chandra Vs. Union of India & Anr [Neutral Citation - 2024 INSC 577, Civil Appeal Nos. 8435 - 8436 OF 2024] held that; 

• It is not the length of delay that would be required to be considered while examining the plea for condonation of delay, it is the cause for delay which has been propounded will have to be examined. If the cause for delay would fall within the four corners of “sufficient cause”, irrespective of the length of delay same deserves to be condoned. However, if the cause shown is insufficient, irrespective of the period of delay, same would not be condoned.

• While deciding an application for condonation of delay, it is well settled that the High Court ought not to have gone into the merits of the case and would have only seen whether sufficient cause had been shown by the appellant for condoning the delay in filing the appeal before it.

• However, if no fault can be laid at the doors of the appellant and cause shown is sufficient then we are of the considered view that both the Tribunal and the High Court were in error in not adopting a liberal approach or justice oriented approach to condone the delay.

• The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the writ court, the rights of the third parties have come into being which should not be allowed to be disturbed unless there is reasonable explanation for the delay.

Excerpts of the Order;

# 1. Heard.

# 2. Leave Granted.

# 3. Appellant has laid challenge in these appeals to the Order dated 14.09.2023 passed by the High Court of Delhi in WP (C) No.5350 of 2022 and CM Appls. 16008 of 2022 and 46942 of 2023 whereby the Writ Petition and connected applications came to be dismissed and Review Petition No.305 of 2023 filed against said Order also came to be rejected on 03.11.2023 and consequently the Order dated 10.12.2020 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the “Tribunal” for brevity) came to be affirmed whereunder the Tribunal dismissed the application for condonation of delay in challenging the Order dated 22.11.2006 imposing the penalty of stoppage of one increment with cumulative effect, on the ground of delay of 425 days in filing the OA and held penalty imposed on the appellant was justified given the nature of charge.

# 4. It would be apt and appropriate to narrate the factual background for appreciating the rival contentions raised in these appeals and the parties are referred to hereinafter as per their rank in the High Court.

BRIEF BACKGROUND

# 5. The appellant was appointed to Indian Statistical Services in the year 1982 and after being promoted as Deputy Director (STS) on regular basis in 1987 came to be promoted as Joint Director (JAG) on ad hoc basis in the year 1992 and regularised in 1993. In the light of the Judgment of this Court in Union of India and Others v. Tushar Ranjan Mohanty and Others (1994) 5 SCC 450 the appellant along with others was reverted in the year 1996 to the post of Deputy Director and again was promoted to the post of Joint Director w.e.f. 08.06.2005.

# 6. Appellant came to be placed under suspension on 13.10.1997 followed by issuance of charge memorandum under Rule 14 of CCS (CCA) Rules, 1965. The only charge against the appellant was that he had deserted his family consisting of his wife and two school going children in December 1985 and was residing separately along with another woman without judicial separation from his wife. The said charge sheet was issued on the basis of the complaint lodged by his wife during August 1997 and he was not paid salary from May 1996 to July 1997.

# 7. The Disciplinary Authority appointed an Inquiry Officer to enquire into the memorandum of charge and during the pendency of the inquiry, the wife of the appellant filed an affidavit withdrawing her complaint on the ground that there had been some misunderstanding. Despite the said affidavit the enquiry officer proceeded with the inquiry and submitted enquiry report on 16.12.1998 holding appellant guilty of charge of deserting his family and further held that the charge of appellant living with another woman was not proved. This report resulted in order of dismissal of appellant from service imposed by the disciplinary authority by order dated 17.04.2000 and review petition filed against the same also ended in its dismissal.

# 8. Being aggrieved by the aforesaid order of dismissal from service, appellant preferred an O.A. No.116 of 2002 before the Tribunal which came to be allowed by Order dated 15.11.2002 and the order of dismissal came to be quashed with the following observations and remitted the case to the disciplinary authority:-

• “2. In the enquiry that ensured, it was found that the assertions that applicant was living with another woman are not established but the other facts referred to above have been so established. Keeping in view the findings referred to above that applicant was not maintaining his wife and two children and they were driven to the starvation level, the disciplinary authority on the advice of the U.P.S.C. dismissed the applicant from service. 

• 3. Before us, at the time of arguments, it was pointed out that no allegation against the applicant of extra marital relations has been established and this fact is not in dispute. Taking clue from aforesaid, it was argued that the punishment of dismissal so awarded, is disproportionate to the dereliction of duty of the applicant.

• 4. We are conscious of the decision that ordinarily this Tribunal is not to go in the said controversy. It is within the domain of the disciplinary authority to consider the relevant facts and pass appropriate orders imposing a particular punishment in a disciplinary authority.

• 5. However, the well-known exception to the said rule is that if the punishment awarded is totally disproportionate to the alleged dereliction of duty, in judicial review there can be interference.

• 6. In the present case, the assertions against the applicant established were that he had not been maintaining his wife and children. After dismissal, he cannot maintain his wife and children. When such is the situation, we have no hesitation in concluding that the punishment awarded is disproportionate to the allegations against the applicant that were established. 

• 7. Accordingly we quash the impugned order and remit the case to the disciplinary authority to pass a fresh order in the light of what has been said above. 

• 8. No opinion is expressed on the other contentions of the applicant for the present. O.A. is disposed of.”

# 9. On matter being sent back to the disciplinary authority, appellant came to be reinstated into service on 09.04.2003 and an order dated 23.04.2004 came to be passed imposing minor penalty of stoppage of one increment of pay for a period of one year, without cumulative effect. Further order came to be passed on 02.08.2004 treating period of suspension as on duty for all purposes. However, no promotion was granted during the period of suspension. Seeking complete exoneration appellant filed a revision petition and same was said to be pending. On account of revision petition filed by the appellant having not been disposed of representations dated 27.07.2015, 16.03.2016 and 17.03.2016 was said to have been submitted by the appellant urging grant of promotion on par with his juniors who had already been promoted and prayed for grant of financial benefits in that regard by complete exoneration of charge levelled. In the meanwhile, appellant attained the age of superannuation and retired from service with effect from 31.10.2016.

# 10. O.A. No.1579 of 2017 came to be filed by the appellant seeking direction to the respondent authorities to consider his representation and same came to be disposed of by the Tribunal vide Order dated 08.05.2017 directing the respondents to dispose of the representation dated 27.07.2015 within a period of 90 days. This resulted in same being disposed of and intimation/communication was forwarded to the appellant on 09.11.2017 informing the appellant thereunder that representation dated 27.07.2015 has been considered & rejected. Appellant was also intimated that his  representations had already been disposed of and same had been intimated vide communication dated 20/22-11-2016 itself and also forwarded copy thereof to the appellant along with communication dated 09.11.2017. The communication dated 09.11.2017 came to be challenged by the appellant in

O.A. No.3034 of 2018 as well as the communication dated 20/22.11.2016. The said O.A. is said to have been withdrawn by the Ld. Counsel appearing for the appellant purportedly without his consent and knowledge on 10.08.2018. The said order of the Tribunal dismissing the O.A. as withdrawn reads: 

• “Learned Counsel for applicant seeks permission of the Tribunal to withdraw the O.A.

• 2. Permission is accorded. The O.A. is dismissed as withdrawn without prejudice to the right of the applicant to pursue his remedy in accordance with law.”

# 11. Appellant claims that he came to know about this fact namely withdrawal of his application before the Tribunal only in the last week of August 2019 and immediately thereafter he had applied for certified copy of the order dated 10.08.2018 and filed another O.A. No.2066 of 2020 before the Tribunal along with Miscellaneous Application No. 3679 of

2019 for condoning the delay in filing the O.A. as he had been given opportunity to pursue his remedy in accordance with law. The application for condonation of delay came to be rejected by the Tribunal vide order dated: 10.12.2020 by observing thus: 

• “3. The delay involved is more than one year. It is not as if the applicant was not aware of the proceedings. As a matter of fact, the OA is filed against the order of dismissal, passed against him was allowed and relief was granted. It is in compliance with the order by the Tribunal, that the revised order of punishment was passed. The appellate authority rejected the appeal in the year 2016. It is not the case of the applicant that he did not receive the same. Further, the applicant was very much free to pursue the proceedings, ever since he retired. Except stating that his earlier counsel did not take proper steps, the applicant did not substantiate the reasons for delay. 4. We are not convinced with the reasons given in the MA. The same is accordingly dismissed. The OA shall also stand dismissed.”

# 12. Being aggrieved by the same appellant filed Writ Petition (Civil) No.5350 of 2022 before the Delhi High Court which dismissed the writ petition by impugned order while affirming the order of the Tribunal and observed that justifiable penalty had been imposed by the disciplinary authority. Hence, this appeal.

CONTENTIONS OF LEARNED ADVOCATES

# 13. It is the contention of Shri Vardhman Kaushik, learned counsel appearing for the appellant that High Court on the one hand having opined not to entertain the writ petition on the ground of alleged unexplained delay, yet proceeded to deal with the matter on merits of the case, that too without affording an opportunity to the appellant and as such the appeal deserves to be allowed by setting aside the impugned order. He would further elaborate his submissions by contending that Tribunal had committed an error in not condoning the delay of 425 days in filing O.A. No.2066 of 2020 and the delay was due to the mistake of the counsel, who without the knowledge and consent of the appellant had withdrawn the earlier O.A. No.3034 of 2018 and also without prejudice to the right of the appellant to pursue his remedy in accordance with law and it is on account of lack of knowledge of the appellant’s application having been withdrawn and on acquiring knowledge about such unilateral withdrawal appellant had taken immediate steps to prosecute his legitimate claim before the Tribunal by filing O.A. No.2066 of 2020 afresh along with an miscellaneous application No.3679 of 2019 for condonation of delay and as such Tribunal ought to have condoned the delay which refused to do so and same has been erroneously affirmed by the High Court. He would submit that a party should not suffer for the mistake of his counsel or the conduct of the counsel and he has placed reliance on Rafiq and Another Vs. Munshilal and Another (1981) 2 SCC 788 and N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123.

# 14. He would further contend that term ‘sufficient cause’ ought to receive liberal construction by the constitutional courts to advance substantial justice and the facts obtained in the instant case were sufficient to hold that the delay in filing fresh O.A. was not attributable to any laxity exhibited by the appellant. On merits the learned counsel appearing for the appellant would contend that it is an undisputed fact that complainant (wife of appellant) had withdrawn her complaint and an affidavit to the said effect had been filed before the Inquiry Officer itself and she had also not deposed before inquiry though cited as a witness on behalf of employer and as such the finding of the enquiry officer holding appellant guilty of alleged misconduct was an erroneous finding and liable to be set aside. Hence, he prays for appeals being allowed.

# 15. Per contra Shri N. Visakamurthy, learned counsel appearing for the respondents would support the impugned orders and submits that purported representations submitted by the appellant vide letters dated 19.10.2004, 16.03.2016 and 17.03.2016, had been examined by the Ministry and had been rejected vide OM dated 20/22-11-2016 and this was challenged in O.A. No.3034 of 2018 and same had been withdrawn by the appellant unconditionally and as such no fault can be laid at the doors of the respondents. Hence, he prays for dismissal of the appeals.

# 16. Having heard the learned advocates appearing for the parties and after bestowing our careful and anxious consideration to the rival contentions raised at the bar, we are of the considered view that the impugned orders are not sustainable and they are liable to be set aside for the reasons assigned hereafter.

DISCUSSION AND FINDINGS

# 17. It is an undisputed fact that appellant was issued with the article of charge alleging that he had deserted his wife and two school going children and was residing along with another lady. The said disciplinary proceedings came to be initiated on account of a complaint lodged by the wife of the appellant. When the Inquiry Officer commenced the inquiry, she filed an affidavit stating thereunder that she had filed the complaint under mistaken notion and she withdrew the complaint. In fact, in the articles of charge issued to the appellant she was cited as a witness by the respective authority and neither she appeared before the Inquiry Officer nor she had deposed in the inquiry proceedings. Though, she had already filed an affidavit withdrawing her complaint against the appellant, yet the Inquiry Officer proceeded with the inquiry and submitted the report as already noticed herein above, holding appellant guilty of the charge of deserting his wife and children and exonerating him of charge of residing with another lady. This resulted in order of dismissal being passed against the appellant and same was challenged before the Tribunal in O.A. No.116 of 2002 by the appellant which came to be allowed and matter was remitted to the disciplinary authority to pass fresh order, which resulted in reinstatement of appellant into service and imposing of minor penalty  namely, stoppage of one increment of pay for a period of one year without cumulative effect.

# 18. On account of the said penalty having been imposed on the appellant representation was submitted to the authorities for complete exoneration and grant of promotion on par with his juniors. In the meanwhile, appellant attained superannuation and thereafter O.A. No.1579 of 2017 was filed for a direction to the respondents to consider the representation which was unattended and a direction came to be issued by the Tribunal on 08.05.2017 directing the respondents to dispose of the representation within a period of 90 days and accordingly it was disposed of as already noticed herein supra and intimated to the appellant by communication dated 09.11.2017.

# 19. Being aggrieved, appellant challenged the same in O.A. No.3034 of 2018. However, the counsel appearing for the appellant is said to have withdrawn the said O.A. On the one hand appellant claims that he had not authorized his counsel to withdraw the O.A. No.3034 of 2018 and on the other hand, learned counsel appearing for the respondents has submitted that OA had been withdrawn by the appellant through his counsel without prejudice to the right of the appellant to pursue his remedy in accordance with law. This oath against oath cannot be tested in absence of any proof. The fact remains that there was no memo duly signed by the appellant came to be filed for withdrawal of the application before the Tribunal.

# 20. Be that as it may. On account of liberty having been granted to the appellant to pursue his remedy in accordance with law, yet another O.A. No.2066 of 2020 along with an application for condonation of delay came to be filed. The delay was not condoned by the Tribunal on the ground that it was filed more than one year after the impugned order came to be passed. No litigant stands to benefit in approaching the courts belatedly. It is not the length of delay that would be required to be considered while examining the plea for condonation of delay, it is the cause for delay which has been propounded will have to be examined. If the cause for delay would fall within the four corners of “sufficient cause”, irrespective of the length of delay same deserves to be condoned. However, if the cause shown is insufficient, irrespective of the period of delay, same would not be condoned.

# 21. In this background when we turn our attention to the facts on hand, it would emerge from the records that appellant being aggrieved by the dismissal of the O.A. No.2066 of 2020 on the ground of delay had approached the Delhi High Court challenging the same. The High Court on  the ground of penalty imposed being a minor penalty, refused to entertain the writ petition or in other words confirmed the order impugned before the Tribunal on merits. This Court in Commissioner, Nagar Parishad, Bhilwara Vs. Labour Court, Bhilwara and Another reported in 2009 (3) SCC 525 has taken a view that while deciding an application for condonation of delay the High Court ought not to have gone into the merits of the case. It has been further held:-

• “5. While deciding an application for condonation of delay, it is well settled that the High Court ought not to have gone into the merits of the case and would have only seen whether sufficient cause had been shown by the appellant for condoning the delay in filing the appeal before it. We ourselves have also examined the application filed under Section 5 of the Limitation Act before the High Court and, in our opinion, the delay of 178 days has been properly explained by the appellant. That being the position, we set aside the impugned order of the High Court. Consequently, the appeal filed before the High Court is restored to its original file. The High Court is requested to decide the appeal on merit in accordance with law after giving hearing to the parties and after passing a reasoned order.”

# 22. If negligence can be attributed to the appellant, then necessarily the delay which has not been condoned by the Tribunal and affirmed by the High Court deserves to be accepted. However, if no fault can be laid at the doors of the appellant and cause shown is sufficient then we are of the considered view that both the Tribunal and the High Court were in error in not adopting a liberal approach or justice oriented approach to condone the delay. This Court in Municipal Council, Ahmednagar and Anr. Vs. Shah Hyder Beig and Ors. 2000 (2) SCC 48 has held:

• “6. Incidentally this point of delay and laches was also raised before the High Court and on this score the High Court relying upon the decision in Abhyankar case (N.L. Abhyankar v. Union of India [(1995) 1 Mah LJ 503] ) observed that it is not an inflexible rule that whenever there is delay, the Court must and necessarily refuse to entertain the petition filed after a period of three years or more which is the normal period of limitation for filing a suit. The Bombay High Court in Abhyankar case  (1995) 1 Mah LJ 503] stated that the question is one of discretion to be followed in the facts and circumstances of each case and further stated:

• “The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the writ court, the rights of the third parties have come into being which should not be allowed to be disturbed unless there is reasonable explanation for the delay.”

# 23. Applying the aforesaid principles which we are in complete agreement to the facts on hand and test the same it would not detain us for too long to set aside the impugned orders, in as much as the delay of 425 days in filing fresh O.A. No.2066 of 2020 has been succinctly explained by the appellant before the Tribunal, namely, it has been contended that there was no intimation of withdrawal of the earlier OA by his counsel and the order of withdrawal dated 10.08.2018 does not reflect that such withdrawal was based on any memo duly signed by the appellant. Further, The High Court has proceeded to confirm the order of the Tribunal on the footing that penalty imposed on appellant is only a minor penalty namely withholding of one increment without cumulative effect, by completely ignoring the fact that in the earlier round of litigation it had been clearly held that punishment of dismissal imposed on the appellant was totally disproportionate to the alleged act.

# 24. In the normal circumstances we would have remitted the matter back to the Tribunal or High Court or to the disciplinary authority for reconsideration of the matter but we desist from doing so for reasons more than one 

• firstly, the age of the appellant is 68 years (as on date); and, 

• secondly, there being no evidence whatsoever available on record to arrive at a conclusion that appellant is guilty of the charge; 

• Thirdly, the complainant herself had withdrawn the complaint made and she was not even examined on behalf of the employer to prove the charge. 

Thus, the findings of the enquiry officer cannot be sustained by any stretch of imagination as it is contrary to the facts and records on hand. There cannot be judicial review of nature of penalty to be imposed by disciplinary authority. Hence, we set aside the impugned orders and hold that appellant is entitled for all consequential benefits flowing from the setting aside of the orders of penalty and respondents are directed to take steps in this regard expeditiously and at any rate within 3 months from the date of receipt of copy of this order. Accordingly appeals stand allowed with no order as to costs.

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P. Pramila and others Vs. State of Karnataka and another - Under the principle of 'delegatus not potest delegare', the delegatee (the Chairman of the Board) could not have further delegated the authority vested in him, except by a clear mandate of law.

SCI  (2015,04.09) in P. Pramila and others  Vs. State of Karnataka and another . [Criminal Appeal No. 152 Of 2012] held that; 

• Under the principle of 'delegatus not potest delegare', the delegatee (the Chairman of the Board) could not have further delegated the authority vested in him, except by a clear mandate of law.

Excerpts of the Order;

The appellants, while being engaged in the business of stocking iron ore, had allegedly violated certain norms prescribed by the Deputy Commissioner under Section 22 of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as the 'Air Act'). The allegation against the appellants was, that they had illegally established iron ore stack yard(s) at various places in Uttara Kannada District. It was alleged, that the appellants had not made provisions for pollution control measures, despite repeated requests and instructions given to them, by the officials of the Karnata State Pollution Control Board (hereinafter referred to as the 'Board'). It was therefore, that CC No.546/2006, CC No.547/2006, CC No.548/2006 and CC No.549/2006 were filed before  the Judicial Magistrate, First Class-II, Karwar. The proceedings against the appellants were sought to be challenged by petitions filed under Section 482 of the Code of Criminal Procedure, wherein the appellants prayed for quashing of the above proceedings. 

A number of similar criminal petitions, filed by the appellants and others, were sought to be disposed of by the High Court of Karnataka, Circuit Bench at Dharwad (hereinafter referred to as the 'High Court'), by a common order dated 7.1.2009. The above order dated 7.1.2009, is subject to challenge in these appeals. A perusal of the impugned order reveals, that the High Court did not examine the merits of the controversy. To dispose of the merits of the claim raised by the appellants before the High Court, it relied upon an earlier order passed by the High Court on 17.04.2007, disposing of Criminal Petition No. 4760 of 2006. Based thereon, the challenge raised by the appellants before this Court, was also sought to be rejected. The factual position indicated hereinabove is apparent from paragraphs 3 to 5 of the impugned order, which are being extracted hereunder: 

• “3. The allegations against the respective petitioner is that, while being engaged in the business of stocking iron ore, the petitioners have violated the norms prescribed by the Deputy Commissioner and thus offence un/s 22 of the Pollution Control Act, has been committed and the further allegation in the complaint is that the petitioners have illegally established and operating iron ore stack yard at various places in Uttara Kannada District without the previous consent of the Karnataka State Pollution Control Board (for short, 'the Board') and that the accused petitioners have not provided any pollution control measures despite repeated requests and instruction given to them by the officials of the Board. Based on the complaint lodged by the Board, learned Magistrate of the trial Court directed issuance of process against the petitioners. It is this order of the trial Court that is called in question in all these petitions. 

• 4. At the outset, learned counsel for the respondents submitted that the present petitions are liable to be dismissed as all the grounds urged in the present petitions by each one of the petitioner have been considered by this Court in a batch of petitions which were disposed of on 17.4.2007 in Crl. Petition No. 4760/06 and connected petitions. Therefore, the present petitions are also liable to be dismissed following the aforesaid order of this Court. 

• 5. Learned counsel appearing for the respective petitioner have not disputed the fact of this court having already dismissed the other petitions filed by the petitioners which are similarly placed and all the contentions which are urged in the present petitions have been considered by the learned single Judge while dismissing batch of petitions on 17.4.2007.” 

During the course of hearing, learned counsel for the appellants invited our attention to the fact, that cognizance of an offence could be taken only by the Board or an officer authorised by the Board, in terms of Section 43 of the Air Act. Section 43 afore-mentioned, was the primary basis of the challenge raised before us. The same is being reproduced hereunder: 

• “43. Cognizance of offences – (1) No court shall take cognizance of any offence under this Act except on a complaint made by - 

• (a) a Board or any officer authorised in this behalf by it; or 

• (b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Board or officer authorised as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. 

• (2) Where a complaint has been made under clause (b) of sub-section (1), the Board shall, on demand by such person, make available the relevant reports in its possession to that person: 

• Provided that the Board may refuse to make any such report available to such person if the same is, in its opinion, against the public interest.” 

Our attention has been pointedly invited to sub-section (1) of Section 43 of the Air Act. Having perused the same, there cannot be any doubt, that when the authorities decided to initiate proceedings under the provisions of the Air Act, the complaint could have been made either by the Board or by an officer authorised by the Board. The question which has to be adjudicated upon (as has been raised by the appellants), was whether, the complaint in furtherance of which CC No. 546/2006, CC No.547/2006, CC No.548/2006 and CC No.549/2006, had been filed by the Board, or an officer authorised by the Board. To be valid, in terms of the mandate of Section 43(1) of the Air Act, it ought to be filed either by the Board or by an officer authorised by the Board. 

Insofar as the above mentioned aspect of the matter is concerned, it is not a matter of dispute, that vide notification/resolution dated 29.3.1989, the Karnataka State Pollution Control Board delegated certain powers to the Chairman of the Board. The aforesaid resolution (limited to the instant issue), is being reproduced below: 

• “subject : Delegation/Empowering of Technical, No.63.11 Administrative and Finalcial Powers to Chairman, Member Secretary and Other Officers working in the Board. 

• The subject of Delegation of Power to the Chairman was also discussed, while subject No.10 was being discussed. After detailed discussion, the Board decided to delegate its power and functions to the Chairman of the Board in terms of Section 11A of the Water(Prevention and Control of Pollution)Act, 1978 (Amended) and Section 15 of Air (Prevention and Control of Pollution) Act, 1981 under the following circumstances: 

• a) In respect of industries who are discharging their effluent without a valid consent under Section 25/26 of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 23 of the Air (Prevention and Control of Pollution) Act, 1981, the Chairman is authorized to initiate legal action under relevant sections. 

• b) In respect of Industries against whom orders passed by the Chairman under Section 32(1)(c) of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 23 of the Air (Prevention and Control of Pollution) Act, 1981 and if such Units have not complied with the directions issued, the Chairman of the Board is authorized to initiate legal action for violating the direction issued under Section 32(1)(c) under Water Act and Section 23 of the Air Act, under relevant penal provision of the respective Acts. 

• The Legal Action initiated in terms of above delegation of powers, the Board shall be kept informed at the next immediate meeting.” 

The Board could delegate the above power to the Chairman of the Board, because Section 43(1) of the Air Act, allowed it to do so. In view of the conclusions recorded above, consequent upon the passing of the resolution dated 29.3.1989, the complaint under Section 43(1) of the Air Act, could have been filed either by the Board or by its Chairman. 

According to the learned counsel for the respondents, proceedings came to be initiated by an order dated 4.4.2006 passed by the Chairman of the Karnataka State Pollution Control Board. Relevant extract of the above order is reproduced below: 

• “In view of the above, I do here by authorize the Regional Officer, Karwar to initiate criminal action under Section 37 of Air (Prevention and Control of Pollution) Act, 1981 by filing criminal case in the competent court against 17 occupiers of the Iron Ore Stack Yards located in and around the Karwar, Ankola and Jolda Taluks of Uttara Kannada District as per the list enclosed as Annexure-1.” 

Having perused the aforesaid communication it emerges, that the Chairman of the Board authorised the Regional Office, Karwar to initiate criminal action under Section 37 of the Air Act, by filing criminal cases in Courts having jurisdiction to deal with them, against 17 owners of iron ore stack yards, located in and around the Karwar, Ankola and Jolda Taluks of Uttara Kannada District. It is not possible to accept, the contention of the respondents, that initiation of the proceedings on the basis of the above order dated 4.4.2006 can be treated as compliance of the mandate contained in Section 43(1) of the Air Act, because the same has reference to a complaint made by the “Board or any officer authorised in this behalf by it”. 

In compliance with the order of the Chairman dated 4.4.2006, the Regional Officer(Deputy Environmental Officer Sri Gopalakrishna B. Sanatangi, filed complaints before the Judicial Magistrate, First Class-II, Karwar. It is natural therefore to conclude, that the complaint against the appellants was neither filed by the Board or its Chairman, but was filed by the Regional Officer (Deputy Environmental Officer). 

Section 43 of the Air Act has already been extracted hereinabove. It is apparent therefrom, that Courts would take cognizance of complaints filed by the Board, or any officer authorised by the Board, in that behalf. The notification/resolution dated 29.3.1989 indicates, that the officer authorised was the Chairman of the Board. The Board could delegate the above power to the Chairman of the Board, because Section 43(1) of the Air Act, authorised the Board to do so. In that view of the matter, either the Board or the Chairman of the Board could have filed the complaints in terms of the mandate contained in Section 43(1) of the Air Act. The power to file the complaint could not be exercised by any other authority/officer. Under the principle of 'delegatus not potest delegare', the delegatee (the Chairman of the Board) could not have further delegated the authority vested in him, except by a clear mandate of law. Section 43 of the Air Act vested the authority, to file complaints with the Board. Section 43 aforementioned, also authorised the Board to delegate the above  authority to any “officer authorised in this behalf by it”. The “officer authorised in this behalf” was not authorised by the provisions of Section 43 of the Air Act, or by any other provision thereof, to further delegate, the authority to file complaints. The Chairman of the Board, therefore, had no authority to delegate the power to file complaints, to any other authority, for taking cognizance of offences under the Air Act. It is apparent, that the determination to initiate action against the appellants, and other similarly placed persons, against whom action was proposed to be taken, by the Chairman of the Board, vide his order dated 4.4.2006, was not in consonance with law. Annexure P-11, appended to Criminal Appeal No. 152/2012 reveals, that the complaint was filed, and the proceedings were initiated before the Judicial Magistrate, First Class-II, Karwar, by the Regional Officer(Deputy Environmental Officer) Sri Gopalakrishna B. Sanatangi, in his capacity as a complainant. The Regional Officer(Deputy Environmental Officer) Sri Gopalakrishna B. Sanatangi, had no jurisdiction to prefer such complaints. Accordingly, we are of the view, that the afore-stated complaints dated 28.04.2006 are liable to be set aside, on the instant technical ground itself. Ordered accordingly. 

Since the petitions filed by the appellants, under Section 482 of the Criminal Procedure Code, are being accepted merely on a technical ground, we hereby direct the competent authority, namely, the Board (or the Chairman of the Board) to re-initiate the above proceedings, in consonance with the provisions of Section 43(1) of the Air Act. The process shall positively be re-initiated within two months from today. In case of failure to initiate fresh proceedings within the time stipulated hereinabove, it shall be imperative for the competent authority, to place the reasons for not doing so before this Court, on the expiry of a period of two months. Extension of time, if needed, shall also be sought by the authorities from this Court, by moving an appropriate interlocutory application. 

Needless to mention, that on re-initiation of the proceedings, the concerned authorities, and the Courts below, shall not take into consideration any observations recorded by us, or the Courts below, while adjudicating upon the merits of instant controversy. It shall be open to the parties to raise all contentions, as may be available to them, in consonance with law. 

The instant appeals are allowed in the aforesaid terms. 

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