& M.D., Bharat Pet. Corpn. Ltd. & Ors Vs. T.K. Raju  Insc 104 (24 February 2006)
Sinha & P.P. Naolekar S.B. Sinha, J :
Respondent was a Senior Sales Officer (LPG) in the Sales Department at Bombay
Office of the Appellants. The Chief Divisional Manager of the Cochin Divisional
Office under whom the Respondent had been working received complaints from All
India LPG Distributors Federation (Kerala Circle) alleging financial irregularities on the part of the
Respondent. Allegedly, the Respondent collected diverse amounts from the
distributors purported to be by way of 'Short Term Hand Loans'. The same had
not been repaid to some of them. On or about 27.7.1992, a charge memo was
served upon the Respondent alleging :
in November 1991 you had taken the loan of Rs. 5000/- from M/s. Rose Flames, Cochin and the said amount was repaid by
you only after a period of five months i.e. only after show cause notice Ref.
C. PERS. STF dated December 10, 1991 was served on you by CDM, Cochin Divisional
Office. At that time you had also taken one DPR (Differential Pressure
Regulator) from the aforesaid Distributor which has not been returned or
replaced by you.
had taken a loan of Rs. 1,000/- from Jyothi Gas, Tripunithura and the said
amount was returned only after a period of about 2 weeks. You had also taken a
DPR (Differential Pressure Regulator) from this Distributor which was returned
only in February 1992 after a period of more than an year.
had taken a loan of Rs. 10,000 in July 1991 from M/s. Krishna Gas, Ernakulam
which amount has not been returned by you. Furthermore, you have also solicited
further loan from this distributor.
had also taken a loan of Rs. 1,000/-from M/s. Cherukara Gas Agencies, Alleppey
during July 1991 which was returned by you after a period of 30 days.
had demanded a loan of Rs. 10,000/-from M/s. Seena Gas who had subsequently
given you Rs. 5,000/- on September
7, 1991 which has not
been returned by you till date.
had taken a loan of Rs. 10,000/- from M/s. Maria Flames for finalising a house
site which has not been returned till now. On assuming charge as LPG Sales
Officer in the month of April 1991, you had demanded Rs. 5000/- again from this
distributor. When the distributor explained his difficulties you had demanded
at least Rs. 2000/- which was not paid by the distributor. On 6.11.91 on your
visit to the distributor for an inspection, you demanded an LPG stove which was
given to you on credit which amount has also not been settled by you.
taken articles and availed services worth Rs. 2487/- from our dealer M/s. K.P.
Varghese & Sons on credit. This amount has also not been settled by you so
had taken supplies of petrol on credit from M/s. K.K. Abraham, Ernakulam during
the period April 1990 and a sum of Rs. 2329.90 due for the supplies has not yet
been paid." A disciplinary proceedings was initiated against the
Respondent. He was found guilty therein. The said charges were levelled against
him purported to be in terms of Rules 4 and 22 of Part II read with Clauses 4,
6, 20, 22, 31 and 37 of Rule A in Part III of the Conduct, Discipline and
Appeal Rules for the Management Staff (for short "the Rules").
Management in the said departmental enquiry examined Mr. Jayaraman, Secretary
of the Federation. Other distributors being eight in number were also examined.
The said witnesses were also cross-examined by the Respondent. An enquiry
report was submitted before the disciplinary authority and the latter by an
order dated 5.12.1994 imposed a punishment of dismissal of services upon the
Respondent. He performed a statutory appeal thereagainst before the Chairman
and the Managing Director of the Appellant-Corporation who was the designated
appellate authority. The said appeal was dismissed by the appellate authority
by an order dated 6.6.1995 stating:
come to the conclusion that charges were duly proved and established against
Sri Raju, as above, I feel I have considered the question of punishment. I feel
that any one of eight charges, if proved, against Sri Raju, would warrant the
punishment of dismissal from service, considering the position held by him as
well as the nature of the misconduct involved. I have already mentioned about
the admissions relating to charges 7 and 8. Taking all this into account, I
feel that in the interests of the Corporation, it is not proper to retain a
person like Sri Raju who is guilty of such misconducts proved against him in
the service of the Corporation.
above circumstances, I conclude that the various submissions, averments made by
Sri T.K. Raju in his Appeal dated 9.3.1995 do not provide any ground meriting
review of the order passed by the Director (Marketing).
the grave nature of acts of misconducts proved against Sri T.K. Raju, I hold
that the order of dismissal of Sri T.K. Raju from Corporation's services,
passed by the Director (Marketing) on 5.12.94 is proper, just and equitable,
and I do not, therefore, wish to interfere with the said Order." A writ
petition, questioning the legality and validity of the said orders was filed by
the Respondent in the High Court of Kerala at Ernakulam which was marked as
Original Petition No. 15479 of 1995. Although the learned Single Judge held
that the principles of natural justice had been complied with and there was no
violation of the Rules, he was of the opinion that quantum of punishment is
disproportionate to the charges of misconduct levelled against him and as such
remitted the matter back to the appellate authority for imposing appropriate
punishment. The Appellants as also the Respondent preferred appeals thereagainst.
By a common judgment dated 21st December, 2001, the Division Bench disposed of both the appeals. The Division Bench
relying on or on the basis of decisions of this Court in M/s. Glaxo
Laboratories (L) Ltd. v. Presiding Officer, Labour Court, Meerut and others
[AIR 1984 SC 1361], A.L. Kalra v. The Project and Equipment Corporation of
India Ltd. [AIR 1984 SC 1361], Papachristou v. City of Jacksonville [405 US 156] and Kartar Singh v. State of Punjab [(1994) 3 SCC 569], opined:
that those charges include the violation of Clause 4 Part II apart from other
charges and the punishment order also relies on the said clause to impose the
penalty of dismissal from service. It is a fairly settled principle of law that
when a penal provision is vague, it denies the equal protection of laws
guaranteed under Article 14. In the light of the above legal principles, the
reliance placed on Clause 4 of Part II of the Classification, Control and
Appeal Rules for the Management Staff, the impugned order is vitiated.
disciplinary authority takes a decision regarding the guilt of a delinquent
employee, it is taking the decision objectively on the basis of the materials before
it. So even if irrelevant considerations have also been looked into for forming
the conclusion of guilt, the Court judicially reviewing the action can consider
whether the remaining ground would have been sufficient for entering the
finding of guilt. So, even if the irrelevant considerations are excluded, still
according to us, the finding of guilt of the writ petitioner will remain"
Having said so, it agreed with the opinion of the learned Single Judge and
"Now it is for the appellate authority
to take a decision as to what must be the penalty which should be imposed on
the delinquent employee. The learned single Judge has suggested a penalty that
may be appropriate on the facts of the case. Going through the judgment, we
feel that the learned Judge only wanted the imposition of a penalty
commensurate with the misconduct proved other than a penalty resulting in loss
of job to him. We feel that the exercise of discretion made by the learned
single Judge that the penalty should be something other than dismissal or
removal from service cannot be said to be perverse warranting interference at
our hands. We notice that the writ petitioner is a member of the scheduled
caste. There is no allegation that he has taken the loans etc. for giving undue
pecuniary advantage to the dealers concerned. Nor is there any allegation that
they have gained any advantage by succumbing to the demands made by the writ
petitioner. Therefore, we affirm the discretion exercised by the learned single
Judge subject to the modifications and clarifications mentioned, above.
Therefore, we remit the matter for fresh decision by the appellate authority in
the light of the observations contained hereinabove. The authority will be free
to take any decision regarding penalty to be imposed on the writ petitioner
except the penalty of dismissal or removal from service. The said authority
shall take a decision within two months from the date of receipt of a copy of
this judgment." Mr. T.R. Andhyarujina, learned senior counsel appearing on
behalf of the Appellant inter alia contended that the High Court committed a
factual error in coming to the conclusion that the order of dismissal was
passed in terms of Rule 4 of the Rules. It was urged that the decisions of this
Court in Kalra (supra) and Glaxo (supra) are not applicable to the facts of
M.N. Krishnamani, learned senior counsel appearing on behalf of the Respondent,
on the other hand, urged that having regard to the fact that the Respondent has
not caused any financial loss to the company nor has defrauded the company to
any extent, the punishment imposed upon him must be held to be harsh. It was
further submitted that charges 2 and 6 cannot be said to have been proved and
in that view of the matter the extreme punishment of dismissal from service is
not commensurate with the charges levelled against the Respondent. It was
argued that as several other punishments could be imposed upon the Appellant
which come within the purview of major penalty; there was no reason as to why
extreme punishment of dismissal of services was imposed upon the Respondent by
the disciplinary authority.
Respondent was a Sales Officer. In 1990, it is stated, there were extreme
shortages of LPG gas cylinders. He, in his official capacity, was dealing with
the LPG Distributors. In terms of Clause 4 of Part II of the Rules, it was
expected of an officer of the Corporation not to do anything which could be
unbecoming of its Management Staff. Clause 22 of Part II of the Rules
categorically debars an employee from raising any loan in the following terms:
Management Staff of the Corporation shall, save in the ordinary course of
business with a bank, the Life Insurance Corporation or a firm of standing,
borrow money from or lend money to or otherwise place himself under pecuniary
obligation to any person with whom he has or is likely to have official
dealings or permit any such borrowing, lending or pecuniary obligation in his
name or for his benefit or for the benefit of any member of his family."
The Respondent admittedly was not only charged under clause (4) of Part III of
the Rules , he was also charged for various other misconducts enumerated in
different clauses of Part II thereof. The High Court, therefore, was not
justified in proceeding with the matter on the premise that some of the charges
against the Respondent had been framed only in terms of clause (4) of Part II
of the Rules.
(supra), the misconduct alleged against the delinquent was trivial. Report
against him was found to be on ipse dixit. It was held that Rule 4(1)(i) did
not specify that its violation will constitute misconduct. It was opined that
the delinquent did not commit any misconduct by violating 'Advance Rules'. In
that situation, it was observed that "how did the question of integrity
arises passes our comprehension". It was held:
sum up the order of removal passed by the disciplinary authority is illegal and
invalid for the reasons:
that the action
is thoroughly arbitrary and is violative of Article 14,
that the alleged
misconduct does not constitute misconduct within the 1975 Rules,
that the inquiry
officer himself found that punishment was already imposed for the alleged
misconduct by withholding the salary and the appellant could not be exposed to
double jeopardy, and
findings of the inquiry officer are unsupported by reasons and the order of the
disciplinary authority as well as the Appellate Authority suffer from the same
the order of removal from service as well as the appellate order are quashed
and set aside." Glaxo (supra) was also rendered in the fact situation
not in dispute that misconduct is a generic term.
State of Punjab and Others v. Ram Singh Ex.
Constable [(1992) 4 SCC 54] it was stated: - "Misconduct has been defined
in Black's Law Dictionary, Sixth Edition at page 999 thus:
transgression of some established and definite rule of action, a forbidden act,
a dereliction from duty, unlawful behavior, wilful in character, improper or
wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior,
delinquency, impropriety, mismanagement, offense, but not negligence or
carelessness." Misconduct in office has been defined as:
unlawful behavior by a public officer in relation to the duties of his office, wilful
in character. Term embraces acts which the office holder had no right to
perform, acts performed improperly, and failure to act in the face of an
affirmative duty to act." In P. Ramanatha Aiyar's Advanced Law Lexicon,
3rd edition, at page 3026, the term 'Misconduct' has been defined as under:
term misconduct implies a wrongful intention and not a mere error of judgment.
Misconduct is not necessarily the same thing as conduct involving moral
turpitude. The word misconduct is a relative term, and has to be construed with
reference to the subject-matter and the context wherein the term occurs, having
regard to the scope of the Act or statute which is being construed.
literally means wrong conduct or improper conduct." More than one
occasion, different courts have taken pains to explain that Kalra (supra) does
not lay down any inflexible rule. [See Probodh Kumar Bhowmick v. University of
Calcutta & Ors., 1994 (2) C.L.J. 456, Tara Chand v. Union of India and Ors.
CWP 5552 /2000 disposed of on 27th August, 2002
(Delhi High Court), Secretary to Government and Others v. A.C.J. Britto, 1997)
3 SCC 387 and Noratanmal Chouraria v. M.R. Murli and Another (2004) 5 SCC 689].
aforementioned situation, the High Court in our opinion committed a manifest
error in relying upon Kalra (supra) and Glaxo (supra), as we have noticed
hereinbefore, that the Respondent was not charged in terms of the Rules alone.
He was charged for violation of several other clauses of the Rules. The High
Court, therefore, was not correct in coming to the conclusion that as some of
the charges were vague and indefinite, thus, no punishment could have been
imposed on the basis thereof.
also do not agree with the submission of Mr. Krishnamani that two of the eight
charges have not been found to be proved. The charges levelled against the
Respondent must be considered on a holistic basis. By reason of such an action,
the Respondent had put the company in embarrassment. It might have lost its image.
It received complaints from the Federation. There was reason for the Appellant
to believe that by such an action on the part of the Respondent the Appellant's
image has been tarnished. In any event, neither the learned Single Judge nor
the Division Bench came to any finding that none of the charges had been
power of judicial review in such matters is limited. This Court times without
number had laid down that interference with the quantum of punishment should
not be done in a routine manner. [See V. Ramana v. A.P.SRTC and Others, (2005)
7 SCC 338, and State of Rajasthan & Anr. v. Mohammed Ayub Naz,
2006 (1) SCALE 79].
regard to the facts and circumstances of this case, we are of the opinion that
it cannot be said that the quantum of punishment was wholly disproportionate to
the charges levelled against the Respondent.
High Court, therefore, committed an error in passing the impugned judgment
which is set aside accordingly. The appeal is allowed.