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Punjab Water Supply Sewerage Board v. Ram Sajivan

Supreme Court of India · 26 April 2007 · [2007] 5 S.C.R. 684

Court
Supreme Court of India
Decided
26 April 2007
Case no.
C.A. No. 2164 of 2007
Reported as
[2007] 5 S.C.R. 684
Result
Appeal(s) allowed
Length
13 pages
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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.

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