Full Judgment Text
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CASE NO.:
Appeal (civil) 8548 of 2003
PETITIONER:
Chairman & M.D., Bharat Pet. Corpn. Ltd. & Ors
RESPONDENT:
T.K. Raju
DATE OF JUDGMENT: 24/02/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
The Respondent was a Senior Sales Officer (LPG) in the Sales
Department at Bombay Office of the Appellants. The Chief Divisional
Manager of the Cochin Divisional Office under whom the Respondent had
been working received complaints from All India LPG Distributors
Federation (Kerala Circle) alleging financial irregularities on the part of the
Respondent. Allegedly, the Respondent collected diverse amounts from the
distributors purported to be by way of ’Short Term Hand Loans’. The same
had not been repaid to some of them. On or about 27.7.1992, a charge
memo was served upon the Respondent alleging :
"That in November 1991 you had taken the loan of Rs.
5000/- from M/s. Rose Flames, Cochin and the said
amount was repaid by you only after a period of five
months i.e. only after show cause notice Ref. C. PERS.
STF dated December 10, 1991 was served on you by
CDM, Cochin Divisional Office. At that time you had
also taken one DPR (Differential Pressure Regulator)
from the aforesaid Distributor which has not been
returned or replaced by you.
You had taken a loan of Rs. 1,000/- from Jyothi Gas,
Tripunithura and the said amount was returned only after
a period of about 2 weeks. You had also taken a DPR
(Differential Pressure Regulator) from this Distributor
which was returned only in February 1992 after a period
of more than an year.
You had taken a loan of Rs. 10,000 in July 1991 from
M/s. Krishna Gas, Ernakulam which amount has not been
returned by you. Furthermore, you have also solicited
further loan from this distributor.
You had also taken a loan of Rs. 1,000/-from M/s.
Cherukara Gas Agencies, Alleppey during July 1991
which was returned by you after a period of 30 days.
You had demanded a loan of Rs. 10,000/-from M/s.
Seena Gas who had subsequently given you Rs. 5,000/-
on September 7, 1991 which has not been returned by
you till date.
You had taken a loan of Rs. 10,000/- from M/s. Maria
Flames for finalising a house site which has not been
returned till now. On assuming charge as LPG Sales
Officer in the month of April 1991, you had demanded
Rs. 5000/- again from this distributor. When the
distributor explained his difficulties you had demanded at
least Rs. 2000/- which was not paid by the distributor. On
6.11.91 on your visit to the distributor for an inspection,
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you demanded an LPG stove which was given to you on
credit which amount has also not been settled by you.
You had taken articles and availed services worth Rs.
2487/- from our dealer M/s. K.P. Varghese & Sons on
credit. This amount has also not been settled by you so
far.
You had taken supplies of petrol on credit from M/s.
K.K. Abraham, Ernakulam during the period April 1990
and a sum of Rs. 2329.90 due for the supplies has not yet
been paid."
A disciplinary proceedings was initiated against the Respondent. He
was found guilty therein. The said charges were levelled against him
purported to be in terms of Rules 4 and 22 of Part II read with Clauses 4, 6,
20, 22, 31 and 37 of Rule A in Part III of the Conduct, Discipline and
Appeal Rules for the Management Staff (for short "the Rules").
The Management in the said departmental enquiry examined Mr.
Jayaraman, Secretary of the Federation. Other distributors being eight in
number were also examined. The said witnesses were also cross-examined
by the Respondent. An enquiry report was submitted before the disciplinary
authority and the latter by an order dated 5.12.1994 imposed a punishment
of dismissal of services upon the Respondent. He performed a statutory
appeal thereagainst before the Chairman and the Managing Director of the
Appellant-Corporation who was the designated appellate authority. The said
appeal was dismissed by the appellate authority by an order dated 6.6.1995
stating:
"Having come to the conclusion that charges were duly
proved and established against Sri Raju, as above, I feel I
have considered the question of punishment. I feel that
any one of eight charges, if proved, against Sri Raju,
would warrant the punishment of dismissal from service,
considering the position held by him as well as the nature
of the misconduct involved. I have already mentioned
about the admissions relating to charges 7 and 8. Taking
all this into account, I feel that in the interests of the
Corporation, it is not proper to retain a person like Sri
Raju who is guilty of such misconducts proved against
him in the service of the Corporation.
In the above circumstances, I conclude that the various
submissions, averments made by Sri T.K. Raju in his
Appeal dated 9.3.1995 do not provide any ground
meriting review of the order passed by the Director
(Marketing).
Considering the grave nature of acts of misconducts
proved against Sri T.K. Raju, I hold that the order of
dismissal of Sri T.K. Raju from Corporation’s services,
passed by the Director (Marketing) on 5.12.94 is proper,
just and equitable, and I do not, therefore, wish to
interfere with the said Order."
A writ petition, questioning the legality and validity of the said orders
was filed by the Respondent in the High Court of Kerala at Ernakulam
which was marked as Original Petition No. 15479 of 1995. Although the
learned Single Judge held that the principles of natural justice had been
complied with and there was no violation of the Rules, he was of the opinion
that quantum of punishment is disproportionate to the charges of misconduct
levelled against him and as such remitted the matter back to the appellate
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authority for imposing appropriate punishment. The Appellants as also the
Respondent preferred appeals thereagainst. By a common judgment dated
21st December, 2001, the Division Bench disposed of both the appeals. The
Division Bench relying on or on the basis of decisions of this Court in M/s.
Glaxo Laboratories (L) Ltd. v. Presiding Officer, Labour Court, Meerut and
others [AIR 1984 SC 1361], A.L. Kalra v. The Project and Equipment
Corporation of India Ltd. [AIR 1984 SC 1361], Papachristou v. City of
Jacksonville [405 US 156] and Kartar Singh v. State of Punjab [(1994) 3
SCC 569], opined:
"8. We find that those charges include the violation of
Clause 4 Part II apart from other charges and the
punishment order also relies on the said clause to impose
the penalty of dismissal from service. It is a fairly settled
principle of law that when a penal provision is vague, it
denies the equal protection of laws guaranteed under
Article 14. In the light of the above legal principles, the
reliance placed on Clause 4 of Part II of the
Classification, Control and Appeal Rules for the
Management Staff, the impugned order is vitiated.
9. When a disciplinary authority takes a decision
regarding the guilt of a delinquent employee, it is taking
the decision objectively on the basis of the materials
before it. So even if irrelevant considerations have also
been looked into for forming the conclusion of guilt, the
Court judicially reviewing the action can consider
whether the remaining ground would have been sufficient
for entering the finding of guilt. So, even if the irrelevant
considerations are excluded, still according to us, the
finding of guilt of the writ petitioner will remain\005"
Having said so, it agreed with the opinion of the learned Single Judge
and directed :
"11. Now it is for the appellate authority to take a
decision as to what must be the penalty which should be
imposed on the delinquent employee. The learned single
Judge has suggested a penalty that may be appropriate on
the facts of the case. Going through the judgment, we
feel that the learned Judge only wanted the imposition of
a penalty commensurate with the misconduct proved
other than a penalty resulting in loss of job to him. We
feel that the exercise of discretion made by the learned
single Judge that the penalty should be something other
than dismissal or removal from service cannot be said to
be perverse warranting interference at our hands. We
notice that the writ petitioner is a member of the
scheduled caste. There is no allegation that he has taken
the loans etc. for giving undue pecuniary advantage to
the dealers concerned. Nor is there any allegation that
they have gained any advantage by succumbing to the
demands made by the writ petitioner. Therefore, we
affirm the discretion exercised by the learned single
Judge subject to the modifications and clarifications
mentioned, above. Therefore, we remit the matter for
fresh decision by the appellate authority in the light of
the observations contained hereinabove. The authority
will be free to take any decision regarding penalty to be
imposed on the writ petitioner except the penalty of
dismissal or removal from service. The said authority
shall take a decision within two months from the date of
receipt of a copy of this judgment."
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Mr. T.R. Andhyarujina, learned senior counsel appearing on behalf of
the Appellant inter alia contended that the High Court committed a factual
error in coming to the conclusion that the order of dismissal was passed in
terms of Rule 4 of the Rules. It was urged that the decisions of this Court in
Kalra (supra) and Glaxo (supra) are not applicable to the facts of this case.
Mr. M.N. Krishnamani, learned senior counsel appearing on behalf of
the Respondent, on the other hand, urged that having regard to the fact that
the Respondent has not caused any financial loss to the company nor has
defrauded the company to any extent, the punishment imposed upon him
must be held to be harsh. It was further submitted that charges 2 and 6
cannot be said to have been proved and in that view of the matter the
extreme punishment of dismissal from service is not commensurate with the
charges levelled against the Respondent. It was argued that as several other
punishments could be imposed upon the Appellant which come within the
purview of major penalty; there was no reason as to why extreme
punishment of dismissal of services was imposed upon the Respondent by
the disciplinary authority.
The Respondent was a Sales Officer. In 1990, it is stated, there were
extreme shortages of LPG gas cylinders. He, in his official capacity, was
dealing with the LPG Distributors. In terms of Clause 4 of Part II of the
Rules, it was expected of an officer of the Corporation not to do anything
which could be unbecoming of its Management Staff. Clause 22 of Part II
of the Rules categorically debars an employee from raising any loan in the
following terms:
"No Management Staff of the Corporation shall, save in
the ordinary course of business with a bank, the Life
Insurance Corporation or a firm of standing, borrow
money from or lend money to or otherwise place himself
under pecuniary obligation to any person with whom he
has or is likely to have official dealings or permit any
such borrowing, lending or pecuniary obligation in his
name or for his benefit or for the benefit of any member
of his family."
The Respondent admittedly was not only charged under clause (4) of
Part III of the Rules , he was also charged for various other misconducts
enumerated in different clauses of Part II thereof. The High Court, therefore,
was not justified in proceeding with the matter on the premise that some of
the charges against the Respondent had been framed only in terms of clause
(4) of Part II of the Rules.
In Kalra (supra), the misconduct alleged against the delinquent was
trivial. Report against him was found to be on ipse dixit. It was held that
Rule 4(1)(i) did not specify that its violation will constitute misconduct. It
was opined that the delinquent did not commit any misconduct by violating
’Advance Rules’. In that situation, it was observed that "how did the
question of integrity arises passes our comprehension". It was held:
"To sum up the order of removal passed by the
disciplinary authority is illegal and invalid for the
reasons: (i) that the action is thoroughly arbitrary and is
violative of Article 14, (ii) that the alleged misconduct
does not constitute misconduct within the 1975 Rules,
(iii) that the inquiry officer himself found that
punishment was already imposed for the alleged
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misconduct by withholding the salary and the appellant
could not be exposed to double jeopardy, and (iv) that the
findings of the inquiry officer are unsupported by reasons
and the order of the disciplinary authority as well as the
Appellate Authority suffer from the same vice.
Therefore, the order of removal from service as well as
the appellate order are quashed and set aside."
Glaxo (supra) was also rendered in the fact situation obtaining therein.
It is not in dispute that misconduct is a generic term.
In State of Punjab and Others v. Ram Singh Ex. Constable [(1992) 4
SCC 54] it was stated: -
"Misconduct has been defined in Black’s Law
Dictionary, Sixth Edition at page 999 thus:
"A transgression of some established and definite
rule of action, a forbidden act, a dereliction from
duty, unlawful behavior, wilful in character,
improper or wrong behavior, its synonyms are
misdemeanor, misdeed, misbehavior, delinquency,
impropriety, mismanagement, offense, but not
negligence or carelessness."
Misconduct in office has been defined as:
"Any unlawful behavior by a public officer in
relation to the duties of his office, wilful in
character. Term embraces acts which the office
holder had no right to perform, acts performed
improperly, and failure to act in the face of an
affirmative duty to act."
In P. Ramanatha Aiyar’s Advanced Law Lexicon, 3rd edition, at page
3026, the term ’Misconduct’ has been defined as under:
"The term misconduct implies a wrongful intention and
not a mere error of judgment. Misconduct is not
necessarily the same thing as conduct involving moral
turpitude. The word misconduct is a relative term, and
has to be construed with reference to the subject-matter
and the context wherein the term occurs, having regard to
the scope of the Act or statute which is being construed.
Misconduct literally means wrong conduct or improper
conduct."
More than one occasion, different courts have taken pains to explain
that Kalra (supra) does not lay down any inflexible rule. [See Probodh
Kumar Bhowmick v. University of Calcutta & Ors., 1994 (2) C.L.J. 456,
Tara Chand v. Union of India and Ors. CWP 5552 /2000 disposed of on 27th
August, 2002 (Delhi High Court), Secretary to Government and Others v.
A.C.J. Britto, 1997) 3 SCC 387 and Noratanmal Chouraria v. M.R. Murli
and Another (2004) 5 SCC 689].
In the aforementioned situation, the High Court in our opinion
committed a manifest error in relying upon Kalra (supra) and Glaxo (supra),
as we have noticed hereinbefore, that the Respondent was not charged in
terms of the Rules alone. He was charged for violation of several other
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clauses of the Rules. The High Court, therefore, was not correct in coming
to the conclusion that as some of the charges were vague and indefinite,
thus, no punishment could have been imposed on the basis thereof.
We also do not agree with the submission of Mr. Krishnamani that
two of the eight charges have not been found to be proved. The charges
levelled against the Respondent must be considered on a holistic basis. By
reason of such an action, the Respondent had put the company in
embarrassment. It might have lost its image. It received complaints from
the Federation. There was reason for the Appellant to believe that by such
an action on the part of the Respondent the Appellant’s image has been
tarnished. In any event, neither the learned Single Judge nor the Division
Bench came to any finding that none of the charges had been proved.
The power of judicial review in such matters is limited. This Court
times without number had laid down that interference with the quantum of
punishment should not be done in a routine manner. [See V. Ramana v.
A.P.SRTC and Others, (2005) 7 SCC 338, and State of Rajasthan & Anr. v.
Mohammed Ayub Naz, 2006 (1) SCALE 79].
Having regard to the facts and circumstances of this case, we are of
the opinion that it cannot be said that the quantum of punishment was wholly
disproportionate to the charges levelled against the Respondent.
The High Court, therefore, committed an error in passing the
impugned judgment which is set aside accordingly. The appeal is allowed.
No costs.