Punjab Water Supply Sewerage Board & Anr Vs. Ram Sajivan & Anr [2007] Insc 458 (26 April 2007)
S.B. Sinha & Markandey Katju
CIVIL APPEAL NO. 2164 /2007 (Arising out of S.L.P. (C) No. 22185 of 2005)
With CIVIL APPEAL NO. 2165/2007 @ S.L.P.(C)No.22950 of 2005 S.B. Sinha, J.
Leave granted.
These two appeals by special leave involving common question of law and fact
were taken up for hearing together and are being disposed of by a common
judgment. Respondents herein were employed on work charge basis. One of the
workman was transferred. Respondents were opposing the said order of transfer.
They allegedly assaulted one of their senior officers as the said order of
transfer despite protests was not cancelled. A First Information Report was
lodged. Their services were terminated on 8.8.1994. They were found guilty in
the criminal case and were convicted by the learned Trial Judge by an order
dated 29.4.2000. They preferred an appeal thereagainst. However, an industrial
dispute was raised questioning the said order of termination. The said dispute
was referred to the Labour Court for adjudication by the State Government. By
an Award, re-instatement of the respondents was directed by the said Court with
continuity of service but without back wages. A Writ Petition preferred
thereagainst by the appellant was dismissed by the High Court by an Order dated
22.11.2000, whereupon the respondent joined his services.
In the meanwhile, an appeal preferred by the respondent was also dismissed
by an Order dated 17.4.2001 by the appellate court. A show cause notice was
issued as to why their services should not be terminated in view of the
judgment of conviction having been upheld by the learned Additional District
Judge. Respondents filed their show cause whereafter an order terminating their
services on the charges of misconduct was passed on 6.8.2001. On a revisional
application filed by the respondents, the High Court by a Judgment dated
24.8.2001 directed them to be released on probation.
A Writ Petition filed by the respondents was disposed of directing the
petitioner to decide the representations made by them within two months.
Pursuant to the said Order, a representation was filed which was rejected. A
writ petition was again filed questioning the said order which by reason of the
impugned judgment has been allowed by the High Court.
Mr. Vijay Kaushal, learned counsel appearing on behalf of the appellant
raised short contention in support of this appeal viz. that High Court
committed a manifest error in passing the impugned judgment, insofar as it
failed to take into consideration that the respondents being guilty of a
serious misconduct, could not have been directed to be re- instated in services
only because they were let off on probation. Strong reliance in this behalf has
been placed on Union of India and Others v Bakshi Ram [(1990) 2 SCC 426].
Mr. Nidhesh Gupta, learned counsel appearing on behalf of the respondent, on
the other hand, submitted that this Court should not exercise its discretionary
jurisdiction under Article 136 of the Constitution of India having regard to
the passage of time and particularly in view of the fact that no disciplinary
proceeding was initiated against the delinquent employees.
The learned counsel relying on the decision of this Court in The Divisional
Personnel Officer, Southern Railway and Another v. T.R. Chellappan etc. [(1976)
3 SCC 190] urged that services of an employee cannot be terminated without
initiating any departmental proceedings. The learned counsel argued that in any
event the appellant having not questioned the Award of the Labour Court, was
bound to give effect thereto.
This Court in various decisions has considered the application of the
provisions of Probation of Offenders Act, 1958; the purpose whereof not marring
the offenders normal life by removing him from the natural surrounding of
his house.
See Arvind Mohan Sinha v. Amulya Kumar Biswas and Others [(1974) 4 SCC 222]
and Hansa v. State of Punjab [(1977) 3 SCC 575].
We are, however, not called upon to determine a question as to whether the
High Court was correct in its judgment giving benefit of the Probation of
Offenders Act to the respondents. The question, however, remain as to what
would be the consequences therefor.
It may be true that, in absence of any statutory rule operating in the
field, the services of an employee cannot be terminated only because he was
found guilty of commission of any offence irrespective of the fact whether the
same involved any moral turpitude on his part, but it would be a different
thing to say that an order made under the provisions of the probation of
offenders Act, would by itself be sufficient to arrive at a conclusion that
despite commission of a grave act of indiscipline, no disciplinary proceeding
should be initiated.
In Bakshi Ram (supra), considering the fact of applicability of Section 3 of
the Probation of Offenders Act and referring to the decision of this Court in
Chellappan (supra), it was held;
10. In criminal trial the conviction is one thing and sentence is another.
The departmental punishment for misconduct is yet a third one. The court while
invoking the provisions of Section 3 or 4 of the Act does not deal with the
conviction; it only deals with the sentence which the offender has to undergo.
Instead of sentencing the offender, the court releases him on probation of good
conduct. The conviction however, remains untouched and the stigma of conviction
is not obliterated. In the departmental proceedings the delinquent could be
dismissed or removed or reduced in rank on the ground of conduct which has led
to his conviction on a criminal charge [See Article 311(2)(b) of the
Constitution and Tulsiram Patel case2].
11. Section 12 of the Act does not preclude the department from taking
action for misconduct leading to the offence or to his conviction thereon as
per law. The section was not intended to exonerate the person from departmental
punishment. The question of reinstatement into service from which he was
removed in view of his conviction does not therefore, arise. That seems obvious
from the terminology of Section 12. On this aspect, the High Courts speaks with
one voice.
It was further observed;
13. Section 12 is thus clear and it only directs that the offender
shall not suffer disqualification, if any, attaching to a conviction of an
offence under such law. Such law in the context is other law providing for
disqualification on account of conviction. For instance, if a law provides for
disqualification of a person for being appointed in any office or for seeking
election to any authority or body in view of his conviction, that
disqualification by virtue of Section 12 stands removed. That in effect is the
scope and effect of Section 12 of the Act. But that is not the same thing to
state that the person who has been dismissed from service in view of his
conviction is entitled to reinstatement upon getting the benefit of probation
of good conduct. Apparently, such a view has no support by the terms of Section
12 and the order of the High Court cannot, therefore, be sustained. In
Chellappan (supra) whereupon Mr. Nidhesh Gupta placed strong reliance,
proceeded on the basis that the term consider and determine
would carry with it the principles of natural justice vis-`-vis. application of
Section 12.
13. It was, however, suggested that Rule 14(i) of the Rules of 1968 is
the provision which contains the disqualification by dispensing with the
departmental inquiries contemplated under Rules 9 to 13 of the said Rules. This
cannot be the position, because as we have already said Rule 14(i) only
incorporates the principle of proviso (a) to Article 311(2). If Section 12 of
the Probation of Offenders Act completely wiped out the disqualification
contained in Article 311(2) proviso (a) then it would have become ultra vires
as it would have come into direct conflict with the provisions of the proviso
(a) to Article 311(2). In our opinion, however, Section 12 of the Act refers to
only such disqualifications as are expressly mentioned in other statutes
regarding holding of offices or standing for elections and so on. This matter
was considered by a number of High Courts and there is a consensus of judicial
opinion on this point that Section 12 of the Act is not an automatic
disqualification attached to the conviction itself.
*** *** ***
21. We now come to the third point that is involved in this case, namely,
the extent and ambit of the last part of Rule 14 of the Rules of 1968. The
concerned portion runs thus:
... the disciplinary authority may consider the circumstances of the case
and make such orders thereon as it deems fit.
In this connection it was contended by the learned counsel for the
appellants that this provision does not contemplate a full- dress or a fresh
inquiry after hearing the accused but only requires the disciplinary authority
to impose a suitable penalty once it is proved that the delinquent employee has
been convicted on a criminal charge. The Rajasthan High Court in Civil Writ
Petition No. 352 of 1971 concerning Civil Appeal No. 891 of 1975 has given a very
wide connotation to the word consider as appearing in Rule 14 and has held that
the word consider is wide enough to require the disciplinary authority to hold
a detailed determination of the matter. We feel that we are not in a position
to go to the extreme limit to which the Rajasthan High Court has gone. The word
consider has been used in contradistinction to the word determine.
The rule-making authority deliberately used the word consider and
not determine because the word determine has a much wider
scope. The word consider merely connotes that there should be active
application of the mind by the disciplinary authority after considering the
entire circumstances of the case in order to decide the nature and extent of
the penalty to be imposed on the delinquent employee on his conviction on a
criminal charge. This matter can be objectively determined only if the
delinquent employee is heard and is given a chance to satisfy the authority
regarding the final orders that may be passed by the said authority. In other
words, the term consider postulates consideration of all the aspects,
the pros and cons of the matter after hearing the aggrieved person. Such an
inquiry would be a summary inquiry to be held by the disciplinary authority
after hearing the delinquent employee. It is not at all necessary for the
disciplinary authority to order a fresh departmental inquiry which is dispensed
with under Rule 14 of the Rules of 1968 which incorporates the principle
contained in Article 311(2) proviso (a). This provision confers power on the
disciplinary authority to decide whether in the facts and circumstances of a
particular case what penalty, if at all, should be imposed on the delinquent
employee. It is obvious that in considering this matter the disciplinary
authority will have to take into account the entire conduct of the delinquent
employee, the gravity of the misconduct committed by him, the impact which his
misconduct is likely to have on the administration and other extenuating
circumstances or redeeming features if any present in the case and so on and so
forth. It may be that the conviction of an accused may be for a trivial offence
as in the case of the respondent T.R. Chellappan in Civil Appeal No. 1664 of
1974 where a stern warning or a fine would have been sufficient to meet the
exigencies of service. It is possible that the delinquent employee may be found
guilty of some technical offence, for instance, violation of the transport
rules or the rules under the Motor Vehicles Act and so on, where no major
penalty may be attracted. It is difficult to lay down any hard and fast rules
as to the factors which the disciplinary authority would have to consider, but
I have mentioned some of these factors by way of instances which are merely
illustrative and not exhaustive. In other words, the position is that the
conviction of the delinquent employee would be taken as sufficient proof of
misconduct and then the authority will have to embark upon a summary inquiry as
to the nature and extent of the penalty to be imposed on the delinquent
employee and in the course of the inquiry if the authority is of the opinion
that the offence is too trivial or of a technical nature it may refuse to
impose any penalty in spite of the conviction. This is a very salutary
provision which has been enshrined in these Rules and one of the purposes for
conferring this power is that in cases where the disciplinary authority is
satisfied that the delinquent employee is a youthful offender who is not
convicted of any serious offence and shows poignant penitence or real
repentance he may be dealt with as lightly as possible.
This appears to us to be the scope and ambit of this provision. We must,
however, hasten to add that we should not be understood as laying down that the
last part of Rule 14 of the Rules of 1968 contains a licence to employees
convicted of serious offences to insist on reinstatement. The statutory
provision referred to above merely imports a rule of natural justice in
enjoining that before taking final action in the matter the delinquent employee
should be heard and the circumstances of the case may be objectively
considered. This is in keeping with the sense of justice and fairplay.
The disciplinary authority has the undoubted power after hearing the delinquent
employee and considering the circumstances of the case to inflict any major
penalty on the delinquent employee without any further departmental inquiry if
the authority is of the opinion that the employee has been guilty of a serious
offence involving moral turpitude and, therefore, it is not desirable or
conducive in the interests of administration to retain such a person in
service. We may further notice that interpretation of the proviso (b)
appended to Article 311(2) of the Constitution of India, vis-`-vis, the
aforementioned terms consider and determine, came up for
consideration before this Court in Union of India and Another v. Tulsiram Patel
etc. [(1985) 3 SCC 398], wherein Chellappan (supra) was expressly overruled
stating;
115. The decision in Challappan case is, therefore, not correct with
respect to the interpretation placed by it upon Rule 14 of the Railway Servants
Rules and particularly upon the word consider occurring in the last part of
that rule and in interpreting Rule 14 by itself and not in conjunction with the
second proviso to Article 311(2). Before parting with Challappan case, we may,
also point out that that case never held the field.
The judgment in that case was delivered on September 15, 1975, and it was
reported in (1976) 1 SCR at pages 783 ff*. Hardly was that case reported then
in the next group of appeals in which the same question was raised, namely, the
three civil appeals mentioned earlier, an order of reference to a larger Bench
was made on November 18, 1976. The correctness of Challappan case was,
therefore, doubted from the very beginning. The services of the respondent
were terminated which have been set aside by the Labour Court pursuant whereto,
they have been re-instated in service.
It is, however, one thing to say that prior to passing of the order of
termination, a disciplinary proceeding should have been initiated, but it is
another thing to say as has been stated by the High Court that only because the
respondents were let off on probation, the same should not affect his service
career at all.
Before embarking on the said issue, we may notice a decision of this Court
relied upon by this Court in Aitha Chander Rao v. State of Andhra Pradesh [1981
(Supp) SCC 17], wherein it was observed;
As the appellant has been released on probation, this may not affect
his service career in view of Section 12 of the Probation of Offenders Act....
The said decision does not lay down any law. No reason has been assigned
in support thereof. This Court therein evidently exercised its jurisdiction
under Article 142 of the Constitution of India.
In fact in Harichand v Director of School Education [(1998) 2 SCC 383],
Aitha Chander Rao (supra) was held to be not a binding precedent on the point
holding ;
6. The order in the case of the said Rao was delivered on an appeal
against conviction. The conviction was sustained but, having regard to the
peculiar circumstances of the case, the said Rao was released on probation and
it was added that this may not affect his service career in view of Section 12
of the Probation of Offenders Act. We do not find in the order in Rao case1 any
discussion of the provision of Section 12 or of the meaning of the words
disqualification, if any attaching to a conviction of an offence under such law
therein. The order cannot, therefore, be regarded as a binding precedent upon
the point.
7. In our view, Section 12 of the Probation of Offenders Act would apply
only in respect of a disqualification that goes with a conviction under the law
which provides for the offence and its punishment. That is the plain meaning of
the words disqualification, if any, attaching to a conviction of an offence
under such law therein.
Where the law that provides for an offence and its punishment also
stipulates a disqualification, a person convicted of the offence but released
on probation does not, by reason of Section 12, suffer the disqualification. It
cannot be held that, by reason of Section 12, a conviction for an offence
should not be taken into account for the purposes of dismissal of the person
convicted from government service. When the order of termination passed by
the appellant on the ground of misconduct was set aside by the Labour Court,
the only course open to it was to initiate a regular departmental proceedings.
Once they had terminated the services of the respondent, during pendency of the
criminal case which as noticed hereinbefore was set aside resulting in their
re-instatement in services, which although did not preclude the appellant from
taking further action against the respondents, the same was required to be done
only in terms of the extant rules i.e. by initiation of a regular departmental
proceedings.
Submission of Mr. Gupta, that owing to passage of time, this Court would
refrain itself from permitting the appellant to initiate a full fledged
departmental proceeding at this stage, does not appeal to us. There are cases
and cases. Factors taking into consideration for issuing such a direction would
be different depending upon the factual matrix involved in each case.
Indiscipline at the work place has been considered by this Court seriously
particularly when the misconduct alleged is physical assault of a higher
authority. The nature of assault, the role played by the concerned workman and the
question as to whether with the passage of time any proceeding should be
initiated or not, in our opinion plays an important role and as such does not
merit laying down a general law in this behalf.
In Muriadih Colliery of Bharat Coking Coal Ltd. v.
Bihar Colliery Kamgar Union Through Workmen [(2005) 3 SCC 331], a Division
Bench noticing an earlier judgment of this Court in Krishnakali Tea Estate v.
Akhil Bharatiya Chah Mazdoor Sangh and Another [(2004) 8 SCC 200] opined;
17. ..... The courts below by condoning an act of physical violence
have undermined the discipline in the organization, hence, in the above factual
backdrop, it can never be said that the Industrial Tribunal could have
exercised its authority under Section 11-A of the Act to interfere with the
punishment of dismissal. Substituting the order of dismissal in such a case,
withholding of one increment in our opinions wholly disproportionate to the
gravity of misconduct and is unsupportable.
18. Herein it is worthwhile to recall the finding of the learned Single
Judge who has rightly held that the assault on the senior officials by the
workmen in discharging of their duties is a misconduct and in such a situation
officials who are managing the affairs will be demoralised. In Hombe Gowda
Educational Trust and Another v. State of Karnataka and Others [(2006) 1 SCC
430], the said decisions were followed stating;
30. This Court has come a long way from its earlier viewpoints. The
recent trend in the decisions of this Court seek to strike a balance between
the earlier approach to the industrial relation wherein only the interest of
the workmen was sought to be protected with the avowed object of fast
industrial growth of the country. In several decisions of this Court it has
been noticed how discipline at the workplace/industrial undertakings received a
setback. In view of the change in economic policy of the country, it may not
now be proper to allow the employees to break the discipline with impunity. Our
country is governed by rule of law. All actions, therefore, must be taken in
accordance with law. Law declared by this Court in terms of Article 141 of the
Constitution, as noticed in the decisions noticed supra, categorically
demonstrates that the Tribunal would not normally interfere with the quantum of
punishment imposed by the employers unless an appropriate case is made out
therefor.
The Tribunal being inferior to this Court was bound to follow the decisions
of this Court which are applicable to the facts of the present case in
question. The Tribunal can neither ignore the ratio laid down by this Court nor
refuse to follow the same. See also Harjit Singh & Anr. v The State of
Punjab &
Anr. [2007 (3) SCALE 553].
A question as to whether a long delay by itself would be a sufficient ground
for not directing initiation of a departmental proceeding came up for
consideration before this Court in P.D. Agrawal v. State Bank of India &
Ors.
[2006 (5) SCALE 54], wherein the doctrine of prejudice was considered
stating that if there exists a satisfactory explanation for delay, same may not
be a bar in directing initiation of a fresh proceedings. We, however, are not
oblivious that in a different situation, this Court in M.V.
Bijlani v. Union of India [(2006) 5 SCC 88] took the factor in regard to delay
in initiating a departmental proceedings as one of the relevant factors amongst
others to determine the question as to whether a misconduct has been proved or
not.
The instant case is not one where we can ignore the gravity of the offence.
It is also not a case where the respondents have pleaded prejudice or brought
sufficient materials on records so as to enable this Court to arrive at a
finding that no evidence would be available. If departmental proceeding is
directed to be initiated then Respondent would not be in a position to adduce
any evidence in support of defence, because of passage of time.
We, therefore are of the opinion that the interest of justice would be met
if liberty is granted to the appellant herein to initiate a disciplinary proceedings
against the respondent whereafter the appellants may pass appropriate order in
accordance with law. The impugned judgment is set aside.
These appeals are allowed to the aforementioned extent.
However, there shall be no order as to costs.
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