PUNJAB WATER SUPPLY SEWERAGE BOARD AND ANR. v. RAM SAJIVAN AND ANR

Citation: [2007] 5 S.C.R. 684

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

PUNJAB WATER SUPPLY SEWERAGE BOARD AND ANR. v. RAM SAJIVAN AND ANR.pdf

Judgment text

f PUNJAB WATER SUPPLY SEWERAGE BOARD AND ANR. v. RAM SAJIVAN AND ANR. APRIL 26, 2007 [S. B. SINHA AND MARKANDEY KATJU, JJ. ] Industrial Disputes Act, 1947-Employees on work charge basis- " Conviction for assaulting senior officer-Termination of service-Reinstatement in service by labour court pursuant whereto employee joining service-Conviction upheld by appellate court-Subsequently, termination for misconduct-Direction by High Court to be released on probation-In writ petition, High Court directing re-instatement-Correctness of-Held: When termination order passed on the ground ofmisconduct set aside resulting in re-instatement, employer was required to take action against employees by initiation ofregular departmental proceedings-Long delay not a sufficient ground for not initiating departmental proceeding-Also, indiscipline at work place is to be considered seriously-Thus, employer granted liberty to ~ initiate disciplinary proceedings against employees.

Respondents-employee on work charge basis opposed transfer order of a workman. Since the transfer order was not cancelled despite protest they assaulted a senior officer. Trial court found them guilty in a criminal case and convicted them. Their services were terminated. Respondent raised an Industrial Dispute. Labour Court directed reinstatement in service with continuity in service without back wages. Appellant-employer filed writ petition which was dismissed whereupon respondent joined the services. Appellate Court upheld the conviction. Thereafter, show cause notice was issued to respondent as to why his service should not be terminated. Respondent filed their show cause. Termination order was passed on the charges of misconduct. Respondent fded revision application. High Court directed them to be released on probation. Respondent then filed writ petition which was disposed of directing the petitioner to decide the representation. Representation filed, was dismissed.

However, writ petition was allowed. Hence, the present appeal. ~- ~ Allowing the appeal, the Court PUNJAB WATER SUPPLYSEWERAGE BOARDv. RAM SAJIVAN HELD: 1. 1. In absence of any statutory rule operating in the field, the ' services ofan 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 grave act of indiscipline, no disciplinary proceeding should be initiated. [Para 10] [688-D, E[ 1 1. 2.

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. [Para 15] [692-G-HJ 1. 3. 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 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 extent rule i. e. by initiation of a regular departmental proceedings. [Para 19] [693-G; 694-A, B] 1. 4.

The submission of respondent 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 appear to be correct. There are cases and cases. Factor taking into consideration for issuing such -A 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 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 plays an important role and as such does not merit laying down a general law in this behalf. [Para 20) [694-B, C, DJ ....... 1. 5. The instant case is not one where the gravity of the offence can be ignored.

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. Ifdepartmental 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. The interest of justice would be met if liberty is granted to the appellant to initiate a disciplinary proceedings against the respondent whereafter the appellants may pass appropriate order in accordance with law. (Paras 24 and 25) (695-G, H; 696-A, BJ Union ofIndia and Ors. v. Bakshi Ram, [1990) 2 SCC 426; The Division Personnel Officer, Southern Railway and Anr. v. T. R. Chellappan etc. , (1976) ,. 3 SCC 190; Arvind Mohan Sinha v. Amulya Kumar Biswas and Ors. , [1974) 4 SCC 222; Hansa v. State ofPunjab, [1977) 3 SCC 575; Union ofIndia and Anr. v. Tulsiram Patel etc. , (1985) 3 SCC 398; Aitha Chander Rao v.

State of Andhra Pradesh, [1981) Supp SCC 17; Hari Chand v. Director of School Education, [1998) 2 SCC 383; Muriadih Colliery of Bharat Coking Coal Ltd v. Bihar Colliery Kamgar Union Through Workmen, (2005) 3 SCC 331; - Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr. , (2004) 8 SCC 200; Hombe Gouda Educational Trust and Anr. v. State of Karnataka and Ors. , (2006) 1 SCC 430; Harjit Singh & Anr. v. The State of Punjab & Anr. , (2007) 3 SCALE 553; P. D. Agarwal v. State Bank ofIndia & Ors. , (2006) 5 SCALE 54 and M V. Bijlani v. Union ofIndia, [2006) 5 SCC 88, >. . referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2164 of2007. From the Final Judgment and Order dated 26. 05. 2005 ofthe High Court of Punjab & Haryana at Chandigarh in CWP No. 12762 of 2002. WITH t.. C. A. No. 2165 of2007. Vijay Kaushal and Dr. Kailash Chand for the Appellants. Nidhesh Gupta,) Vinod Shukla and S. Janani for the Respondents. The Judgment of the Court was delivered by S. B.

SINHA, J. I. Leave granted. 2. 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 common judgment. Respondents herein were employed on work charge PUNJAB WATERSUPPLYSEWERAGEBOARDv. RAM SAJIVAN [S. B. SINHA, J. ) basis. One of the workman was transferred. Respondents were opposing the Ill said order of transfer. They allegedly assaulted one of their senior officers as the said order oftransfer 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 respor. dent was also dismissed by an Order dated 17. 4. 2001 by the appellate court. 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 are visional application filed by the respondents, the High Court by a Judgment dated 24. 8. 2001 directed them to be released on probation. > .. 3.

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. writ petition was again filed questioning the said order which by reason of the impugned judgment has been allowed by the High Court. 4. Mr. Vijay Kaushal, learned counsel appearing on behalfofthe appellant raised short contention in support ofthis appeal viz. that High Court committed - > a manifest error in passing the impugned judgment, insofar as it failed to take into consideri! tion 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 ofIndia and Ors. v. Baksh(Ram, [1990] 2 SCC 426. 5. 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. 6. The learned counsel relying on the decision of this Court in The Divisional Personnel Officer, Southern Railway and Anr. v. T. R. Che/lappan etc. , [1976] 3 SCC 190 urged that services ofan 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. 7.

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. 8. See Arvind Mohan Sinha v. Amulya Kumar Biswas and Ors. , (1974] 4 SCC 222 and Hansa v. State ofPunjab, (1977] 3 SCC 575]. 9. 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. I0. 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. 11. 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 _r however, remains untouched and the stigma of conviction is not obliterated. In the departmental proceedings the delinquent could be PUNJAB WATER SUPPLY SEWERAGE BOARD v. RAM SAJIVAN [S. B. SINHA,J. ] 689 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(2Xb) of the Constitution and Tulsiram Patel case']. 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 j 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 _. I. _ ' conviction, that disqualification by virtue ofSection 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. 12. 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-a-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 '. ;. 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 ofmisconduct 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 ~ J__ 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 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 ofjustice 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 ofadministration to retain such a person in service. " 13.

We may further notice that interpretation ofthe proviso (b) appended to Article 311(2) of the Constitution of India, vis-a-vis, the aforementioned terms consider and determine, came up for consideration before this Court in Union ofIndia and Anr. v. Tulsiram Patel etc. , (1985] 3 SCC 398, wherein Chellappan (supra) was expressly overruled stating; 115. The decision in Chal/appan case is, therefore, not correct with respect to the interpretation placed by it upon Rule 14 ofthe 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 fl'*.

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 ofreference to a larger Bench was made on November 18, 1976. The correctness of Challappan case was, therefore, doubted from the very beginning. " 14. 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. 15. 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 PUNJAB WATERSUPPLYSEWERAGEBOARDv. RAMSAJJVAN (S. B. SINHA,l. ) 693 service career at all. 16. Before embarking on the said issue, we may notice a decision ofthis 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 ofthe Probation of Offenders Act.... " 17. 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. 18. In fact in Harichandv. Director ofSchool 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 1 do not find in the order in Rao case 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 ofSection 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. " 19. When the order of tennination 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 tenninated the services of the respondent, during pendency of the criminal case which as noticed hereinbefore was set aside resulting in their reinstatement 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 tenns ofthe extant rules i. e. by initiation ofa regular departmental proceedings. 20. Submission of Mr.

Gupta, that owing to passage of time, this Court would refrain itself from pennitting 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. - 21. In Muriadih Colliery ofBharat Coking Coal Ltd. v. Bihar Colliery Kamgar Union Through Workmen, [2005] 3 SCC 331, a Division Bench noticing an earlier judgment ofthis Court in Krishnakali Tea Estate v.

Akhil Bharatiya Chah Mazdoor Sangh and Anr. , (2004] 8 SCC 200 opined; 17...... The courts below by condoning an act of physical violence have undennined 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 PUNJABWATER SUPPLYSEWERAGEBOARD v. RAM SAJIVAN [S. B. SINHA, J. ) ~ demoralised. 22. In Hombe Gowda Educational Trust and Anr. v. State ofKarnataka and Ors.

, [2006] I 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 i 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 ofPunjab & Anr. , (2007) 3 SCALE553]. ,, 23. 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 ofIndia & Ors.

, (2006) 5 SCALE 54, wherein the doctrine of prejudice was considered stating that ifthere 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 ofIndia, [2006] ,Ai ' 5 sec 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. 24. 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 A 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. 25.

We, therefore are of the opinion that the interest of justice would B 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. 26. These appeals are allowed to the aforementioned extent. However, there shall be no order as to costs. N. J. Appeal allowed. ( -