State of
M.P.& Ors Vs. R.N.Mishra & ANR
[1997] INSC 741 (17 September 1997)
K.
VENKATASWAMI, V.N. KHARE
ACT:
HEADNOTE:
THE
17TH DAY OF SEPTEMBER,1997 Present:
Hon'ble
Mr. Justice K. Venkataswami Hon'ble Mr. Justice V.N. Khare Sakesh Kumar, Charu Singha
and S.K. Agnihotri, Adv. for the appellants.
Shiv Sagar
Tiwari, Adv. for the Respondents
The
following Judgement of the Court was delivered;
V.N.KAHRE,J.
In the
year 1974-75, the respondent herein was posted as Forest Range officer in Majhgawan Range. Forest Circle Satna.(M.P)when he
was alleged to have committed certain acts of misconduct. Consequently, in the
year 1976 a preliminary inquiry was initiated to inquire into the allegations
against the respondent was promoted as Assistant Conservator of Forest, while
the preliminary inquiry was in progress. A charge-sheet was issued on 12-7-1882 and served upon the respondent, who was required to
submit his explanation thereto. The charges contained in the Charge sheet
related to the year 1974-75 when the respondent was posted as Forest Range
Officer in Majhgawan Range, District State Government by an order dated 26th
September, 1986, inflicted penalty on the respondent by withholding his two
increments. The respondent appealed against the said order.
During
the pendency of the said appeal, the respondent filed Original Application
before the Madhya Pradesh Administrative Tribunal (for short "the
tribunal") for setting aside the order dated 26the September,1986 whereby
his two increments were withheld.
The
Tribunal, being of the opinion that by promoting the respondent to the Post of
Assistant Conservator of Forest in the Year 1977, the allegations of misconduct
attributed to the respondent stood condoned and as such, the penalty imposed
upon him by the impugned order dated 26th September, 1986 passed by the State
Government and allowed the Application of the respondent. Aggrieved by the judgement
and order dated 23.4.1993 passed by the Tribunal in O.A. No.492/89, the State
Government has come up in appeal before this Court.
Learned
Counsel for the appellants urged that the principle of condonation of
misconduct under the ordinary law Master and Servant is not applicable where in
law the appointing authority is required to consider the case of an employee
for promotion despite the pendency of preliminary inquiry against him and the
employee is promoted to higher post having found fit for promotion. In short,
the argument is, that by promoting the respondent to the post of Assistant
Conservator of Forest, the allegation of misconduct against him, which is the
subject matter of inquiry, in law, cannot be treated as misconduct.
Before
we advert to the argument of the learned counsel for the appellant, it may be
seen as to what is the doctrine of condonation of misconduct under the ordinary
law of master Servant, an employer has option to punish an earring employer if
voluntary elects not to take any action to punish the delinquent officer, then
it would be a case of Condonation of Misconduct by the master. In labor and Labor
Relations [48 Am Jr 2nd 639] - it is stated thus:
":636.-
Condonation of Misconduct.
The
doctrine of condonation prohibits an employer from misleadingly agreeing to
return his employees to work and then taking disciplinary forgiven. (Packers
Hide Asso.V. NLRB (CAB)360 F2d 59).
Condonations
can be found, however, only where there is clear and convincing evidence that
the employer has completely forgiven the guilty employee for his misconduct and
has agreed to a resumption of the employee relationship as though no misconduct
had occurred. [Packers Hide Asso. V. NLRB (supra)]." In L.W Middleton v.Harry
Plyfair [AIR 1925 Cal.87 at p.88] it was held thus:
"If
a master on discovering that his servant has been guilty of misconduct which
would justify which would justify a dismissal, Yet elects to continue him in
his service, he cannot at any subsequent time dismiss him on account of that
which he has waived or condoned." In District Council, Amraoti through
Secretary V. Vithal Vinayak Bapat [AIR 1941 Nagpur 125], it was held that:
"Once
a master has condoned any misconduct on a part of servant which would have
justified dismissal or a fine, he cannot, after such condonation, go back upon
his election to condone and claim a right it dismiss him or impose a fine or
any other punishment in respect of the offence which has been condoned."
The substance of the decision cited above is that under ordinary law of Master
and Servant once an employer has condoned any misconduct attributed to an
employee, which have otherwise justified his dismissed or punishment, the
employer cannot after such condonation go back upon his election to condone and
assert a right to punish the servant. Bu, the question that arises for
consideration in the instant case is, whether the doctrine of condonation of
misconduct under ordinary law of master and servant can be pressed into service
where an employee is governed by statutory rules, and under law the employer is
required to consider the case of an employee for promotion against whom a preliminary
enquiry is pending. To begin with when there is an offer and acceptance of an
appointment, the relationship between the employee and Government may be
contractual, but once an employee is appointed, he acquires a status, as his
conditions of service are regulated by statutory rules or provisions of an Act.
Under law, government is not justified in excluding an employee from the field
of consideration for promotion merely on the ground that certain disciplinary
proceedings are contemplated or some preliminary inquiry to inquire into the
misconduct attributed to that employee are pending. In New Bank of India V. N.P.Sehgal & Anr. [J.T.
499], it was held by this court, thus:
"......
the mere fact that disciplinary proceedings are contemplated or under consideration
against an employee does not constitute a good ground for not considering the
employee concerned for promotion if he is in the zone of consideration nor
would it constitute a good ground for denying the promotion if the employee is
considered otherwise fit for promotion." In B.C. Chaturvedi V. Union of India and others, [(1995) 6 SCC 749 at
page 757] this court held as follows:
"It
is true that pending disciplinary proceeding, the appellant was promoted as
Assistant commissioner of Income tax. Two courses in this behalf are open to
the competent authority, Viz., sealed cover procedure which is usually
followed, or promotion, subject to the result of pending disciplinary action.
Obviously, the appropriate authority adopted the latter course and gave the
benefit of promotion to the appellant. Such an action would not stand as an
impediment to take pending disciplinarian action to its logical conclusion. The
advantage or promotion gained by the delinquent officer would be on impediment
to take appropriate decision and to pass an order consistent with the finding
of provide misconduct." In view of these decisions, it must be held that
an employee/officer who is required to be considered for promotion, despite the
pendency of p[preliminary inquiry or contemplated inquiry against him is
promoted, having found fit, the promotion so made would not amount to condonation
of misconduct which is subject matter of the inquiry.
In the
present case, misconduct attributed to the respondent came to light in the year
1976 when a preliminary enquiry was ordered and while the inquiry was
continuing, the State Government was required to consider the case of the
respondent for promotion to the post of Assistant Conservator of Forest. Under
law, the State Government could not have excluded the respondent from the zone
of consideration, merely on the ground that a preliminary inquiry to enquiry
into the allegations of misconduct attributed to him was pending. In such a
situation, the doctrine of condonation of midconduct cannot be applied as to
wash off the acts of misconduct which was the subject matter of preliminary
enquiry, We are, therefor, of opinion that the promotion of the respondent to
the post of Assistant Conservator of Forest would not amount to condonation of
misconduct alleged against him which was the subject matter of preliminary
inquiry. Consequently, the punishment imposed on the respondent by the State
Government was valid and legal. The decision relied upon by the Tribunal as
well as by learned counsel for the respondent in the case of Lal Audhraj Singh
V. State of M.P. [AIR 1967 M.P. 284] is not applicable to the facts of the
present case, as in that case, the employer had a choice to inflict punishment
on the employee but the employer did not choose to punish the employee and in
that context, it was held by the High Court that the misconduct attributable to
the employee was condoned.
For
the foregoing reasons, the judgement and order dated 23.4.1993 passed by the
Madhya Pradesh Administrative Tribunal in O.A.NO.. 492/89, is set aside and the
present appeal allowed. There shall be no order as to costs.
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