CASE NO.:
Appeal (civil) 2164 of 2007
PETITIONER:
Punjab Water Supply Sewerage Board & Anr
RESPONDENT:
Ram Sajivan & Anr
DATE OF JUDGMENT: 26/04/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT
JUDGMENT 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 reinstated 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 offender\022s 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;
\02310. 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;
\02313. 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.\024
In Chellappan (supra) whereupon Mr. Nidhesh Gupta placed strong reliance, proceeded on the basis that the term \023consider\024 and \023determine\024 would carry with it the principles of natural justice vis-‘-vis. application of Section 12.
\02313. 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 \023determine\024.
The rule-making authority deliberately
used the word \023consider\024 and not
\023determine\024 because the word \023determine\024
has a much wider scope. The word
\023consider\024 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 \023consider\024 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.\024
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 \023consider\024 and \023determine\024, 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;
\023115. 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.\024
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;
\023As 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.... \024
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 ;
\0236. 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.\024
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;
\02317. ..... 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.\024
In Hombe Gowda Educational Trust and Another v. State of Karnataka and Others [(2006) 1 SCC 430], the said decisions were followed stating;
\02330. 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.\024
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.