Madras High Court
T.B. Adhikesavalu vs Senior Divisional Manager, Life ... on 8 November, 1989
Equivalent citations: (1990)1MLJ457
JUDGMENT Nainar Sundaram, J.
1. This Writ Appeal is directed against the order of the learned single Judge in W.P.No. 4775 of 1979. The appellant herein was the petitioner in the writ petition. The respondents herein were the respondents in the writ petition. We shall refer to the parties as per their array in the Writ Petition.
2. The petitioner was a Development Officer in the employ of the Life Insurance Corporation of India, hereinafter referred to as the Corporation, and while he was functioning in Namakkal Taluk, it transpired during the claim of investigation of life policy on the life of Kalianna Goundar of Peramandampalayam village, Namakkal Taluk, that the claim was not a genuine one and hence the case was referred to Special Police Establishment/Central Bureau of Investigation, Madras, for a more detailed investigation. The first information report was filed on 18.7.1974 in which the petitioner was shown as the first accused. He, along with others, was found to have had been instrumental in getting the concerned policy issued by the first-respondent in the year 1972; and making a fraudulent claim on the basis that the said policy holder died on 27.1.1973. The fact that transpired was, the said Kalianna Gounder had died ten or fifteen years prior to the policy and was not even alive on the date of the proposal. A charge sheet was filed against the petitioner and three others on 28,5.1975. The petitioner was suspended from service on 6.6.1975 pending enquiry into the case. On 23.5.1976 the Chief Judicial Magistrate, Salem, convicted the petitioner and three others under Sections 120-B, 420 and 511, I.P.C. and sentenced them to imprisonment till the rising of the Court and to pay a fine of Rs. 1,000 each in default to suffer rigorous imprisonment for one year. The petitioner paid the fine of Rs. 1,000. The petitioner filed an appeal to the Sessions Judge, Salem, and the appellate court by judgment dated 31.8.1976, while confirming the conviction, modified the sentence with a direction to release the petitioner under Section 4(1) of the Probation of Offenders Act on his executing a bond in a sum of Rs. 1,000 with two sureties for a like sum to the satisfaction of the Chief Judicial Magistrate, Salem, to be of good behaviour for one year and to appear and receive sentence when called upon during that period and in the meantime to keep peace and be of good behaviour.
3. On 26.11.1976, the first-respondent issued a charge sheet-cum-show cause notice and the same stands extracted as 'Annexure A' to this Judgment. The petitioner replied to this charge sheet-cum-show cause notice and his reply is, as found in 'Annexure B' to this Judgment. From the reply, we find that the petitioner preferred a revision in Crl.Revision Case No. 812 of 1976 to this Court. This Revision was dismissed on 3.4.1978. On 15.4.1978 a further memorandum was issued by the first-respondent to the petitioner, as found in 'Annexure C to this judgment. The petitioner offered an elaborate explanation on 15.6.1978, pleading for condonation of the carelessness on his part and giving him an opportunity to continue to serve the Corporation by reinstating him into service. On 21.7.1978, the first-respondent passed orders of removal from service of the petitioner as per 'Annexure D' to this judgment. The petitioner took up the matter to the second-respondent and the second-respondent, by his order dated 7.3.1979 did not interfere with the order of the first-respondent and rejected the appeal of the petitioner. A copy of the order of the second-respondent is found as 'Annexure E' to this judgment. The petitioner went further to the third-respondent by way of a memorial and the third-respondent passed orders on 4.8.1979 finding no warrant for interference and rejecting the memorial of the petitioner. The order of the third-respondent is as found in 'Annexure F' to this judgment. Thereafter the petitioner came to this Court by way of writ petition and the learned single Judge found no warrant for interference and dismissed the writ petition. This has obliged the petitioner to prefer this writ appeal. Since we are dealing with the points raised before the learned single Judge, we are not referring to the findings and views of the learned single Judge on the points involved.
4. Mr. M.R. Narayanaswami, learned Counsel appearing for the petitioner, would submit that the petitioner having been released under the Probation of Offenders Act, there could not be an automatic removal from service even as per Regulation 39(4) of the Life Insurance Corporation of India (Staff) Regulations, 1960, hereinafter referred to as the Regulations, which was relied on by the respondents for maintaining the action taken by them against the petitioner and as per the said Regulation the disciplinary authority has to consider the circumstances of the case and then only pass such orders as we may deem fit and there is lack of such consideration and application of mind on the part of the respondents. Though the proceedings taken against the petitioner quoted Regulation 39(1) of the Regulations, which deals with imposition of penalties for misconduct in disciplinary action, after satisfying the formalities of show cause and enquiry as set down in sub-regulations (2) and (3) thereof, the stand taken by the respondents throughout is that the penalty of removal from service was imposed on the petitioner only on the grounds of conduct which has led to his conviction before the criminal court. Regulation No. 39(4)(1) of the Regulations speaks about the power of the disciplinary authority to impose penalties on the employee on the grounds of conduct which has led to a conviction on a criminal charge on his considering the circumstances of the case, and he is given the power to pass such orders as he deems fit after such consideration. Learned Counsel for the petitioner would contend that the proceedings taken against the petitioner do not disclose that such a consideration, as contemplated under Regulation 39(4) of the Regulations, did take place. Learned Counsel for the petitioner was more on the aspect of the release of his client under the Probation of Offenders Act and would say that relevant considerations weighed with the appellate Court in passing orders under that Act and there ought to have been taking into account of the said factors by the respondents also and they did not do so. Learned Counsel for the petitioner would say that consideration as per Regulation No. 39(4) of the Regulations should mean taking into account the entire conduct of the petitioner, 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.
5. The above argument of the learned Counsel for the petitioner is inspired by the observations of the Supreme Court in Divisional Personnel Officer v. T.R. Chellappan . There is a passage occurring in the said pronouncement to the above effect, while considering a rule similar to Regulation 39(4) of the Regulations. The pronouncement in Divisional Personnel Officer v. T.R. Chellappan was rendered by a Bench of three learned Judges of the Supreme Court. So far as the above observations found in Divisional Personnel Officer v. T.R. Chellappan are concerned, they have found approval by a larger Bench of the Supreme Court, consisting of Five Learned Judges of the said Court in Union of India v. Tulsiram Patel wherein it was observed:
Undoubtedly, the disciplinary authority must have regard to all the facts and circumstances of the case as set out in Chellappan's case .
However, on the question as to what is the meaning that should be annexed to the word 'consider', the later pronouncement of the larger Bench of the Supreme Court consisting of five learned Judges, has differed from the view expressed in Divisional Personnel Officer v. T.R. Chellappan . The view expressed in Divisional Personnel Officer v. T.R. Chellappan with regard to the interpretation of the word 'consider' runs as follows:
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 cannotes 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 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 officence, 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 the 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 a 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 fair play. 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 interest of administration to retain such a person in service.
Mr. S.N. Prasad appearing for the appellants submitted that it may not be necessary for the disciplinary authority to hear the accused and consider the matter where no provision like Rule 14 exists, because in such cases the Government can, in this exercise of its executive powers, dismiss, remove or reduce in rank any employee who has been convicted of a criminal charge by force of Proviso (a) to Article 311(2) of the Constitution. In other words, the argument was that to cases where Proviso (a) to Article 311(2) applies a departmental inquiry is completely dispensed with and the disciplinary authority can on the doctrine of pleasure terminate the services of the delinquent employee. We however refrain from expressing any opinion on this aspect of the matter because the cases of all the three respondents before us are cases which clearly fall within Rule 14 of the Rules of 1968 where they have been removed from service without complying with the last part of Rule 14 of the Rules of 1968 as indicated above. In none of the cases has the disciplinary authority either considered the circumstances or heard the delinquent employees on the limited point as to the nature and extent of the penalty to be imposed if at all. On the other hand, in all these cases, the disciplinary authority has proceeded to pass the order of removal from service straight-way on the basis of the conviction of the delinquent employees by the criminal Courts.
6. The interpretation given by the larger Bench of five learned Judges of the Supreme Court in Union of India v. Tulsiram Patel to the expression 'consider' runs as follows:
The word 'consider', however, does not hear the meaning placed upon it in Chellappan's case the word 'consider' is used in Rule 14 as a transitive verb. The meaning of the word 'consider' as so used is given in the Oxford English Dictionary as 'To contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give and heed to, take note of. The relevant definition of the word 'consider' given in Webster's Third New International Dictionary is 'to reflection; think above with a degree of care or caution'. Below this definition are given the synonyms being 'contemplate, study, weigh, revolve, excogitate.' While explaining the exact different shades of meaning in this group of words, Webster's Dictionary proceeds to state as under with respect to the word 'consider'. 'Consider' often indicates little more than think about. It may occasionally suggest somewhat more conscious direction of thought, somewhat greater depth and scope and somewhat greater purposefulness.' It is thus obvious that the word' consider in its ordinary and natural sense is not capable of the meaning assigned to it in Chellappan's case AIR 1975 SC 2216. The consideration under Rule 14 of what penalty should be imposed upon a delinquent railway servant must, therefore, be ex parte and where the disciplinary authority comes to the conclusion that the penalty which the facts and circumstances of the case warrant is either of dismissal or removal or reduction in rank, no opportunity of showing cause against such penalty proposed to be imposed upon him can be afforded to the delinquent Government servant Undoubtedly the disciplinary authority must have regard to all the facts and circumstances of the case as set out in Chellappan's case AIR 1975 SC 2216. As pointed out earlier, considerations of fair play and justice requiring a hearing to be given to a government servant with respect to the penalty proposed to be imposed upon him do not enter into the picture when the second proviso to Article 311(2) comes into play and the same would be the position in the case of a service rule reproducing the second proviso in whole or in part and whether the language used is identical with that used in the second proviso, or not. There are a number of orders which are of necessity passed without hearing the party who may be affected by them. For instance, courts of law can and often do pass ex parte and interim orders on the application of a plaintiff, petitioner or appellant without issuing any notice to the other side or hearing him. Can it, therefore, be contended that the judge or judges, as the case may be, did not apply his or their mind while passing such an order?
The decision in Chellppan's case AIR 1975 SC 2216 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 with the second proviso to Article '311(2). Before parting with Chellappan's case AIR 1975 SC 2216 we may also point out that that case was delivered on September 15, 1975, and it was reported in (1976) I SCR at page 783 ff. Hardly was that case reported than 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 Chellappan's case AIR 1975 SC 2216 was, therefore, doubted from the very beginning.
The later pronouncement of the larger Bench was not prepared to maintain a proposition that consideration should include a hearing of the delinquent employee. In fact, learned Counsel for the petitioner did not advance a theory that there should have been a hearing of the petitioner for the purpose of considering the matter as contemplated under Regulation 39(4) of the Regulations.
7. Learned Counsel for the petitioner was expressing a grievance that there was lack of consideration of the relevant facts and circumstances as per the observations found in Divisional Personnel Officer v. T.R. Chellappan , which observations have been approved by the later pronouncement of the Supreme Court in Union of India v. Tulsiram Patel . Mr. J. Kanakaraj, learned Counsel appearing for the respondents, would submit that the matter must be assessed from a conspectus of all the relevant materials and, in fact, that was how the matter has been assessed and considered by the respondents throughout and their assessment and consideration could not be stated to have suffered from any infirmity breaching the ratio and the norms laid down by the highest Court in the land in the above pronouncements. Learned Counsel for the respondents points out that the conduct of the petitioner in fabricating a life policy and making a claim on the basis of the same is a heinous conduct in relation to the administration of the Corporation, which is a public body; and keeping him in service after he has been found guilty of such conduct by the criminal courts, will have drastic consequences on the administration and there are no extenuating features or redeeming circumstances to warrant the respondents taking a lenient view. That there was a fabrication of a policy when the person shown as 'insured' in the policy was dead and gone long back, and the petitioner was involved in that, is a matter concluded by pronouncements of the criminal courts. The conviction of the petitioner by the criminal courts could be certainly taken as sufficient proof of misconduct. In the proceedings taken by the respondents, as per copies annexed to this judgment, there is advertence to the judgments of the criminal Courts and further there is reference to an independent consideration of the conduct of the petitioner and it has been opined that his conduct has proved detrimental to the interests of the Corporation. On the facts of the case, we cannot characterise this consideration and assessment of the matter by the respondents as violating any of the norms laid down by the pronouncements of the highest court in the land. There is sufficient compliance with the said norms. Hence, we eschew this submission put forth by the learned Counsel for the petitioner.
8. Secondly, learned Counsel for the petitioner, would contend that the proceedings passed by the respondents are non-speaking. Learned Counsel would complain that the learned single Judge committed an error in perusing the files to support the proceedings passed by the respondents. Even if we eschew the files relied on by the respondents, we cannot characterise the proceedings passed by the respondents as non-speaking. They are sufficiently speaking and they do bear out a proper consideration of the relevant features and aspects of the matter and they also speak out the making up the mind of the respondents on the question of the imposition of the punishment and their ultimate decision. Hence, we could not appreciate and sustain this contention of the learned Counsel for the petitioner.
9. Thirdly and lastly, learned Counsel for the petitioner would submit that the punishment of removal from service is disproportionate to the misconduct, as to shock the conscience and that punishment is vindictive and unduly harsh. Facts of the case do not at all support this plea. A person who is capable of fabricating a policy and could be instrumental in projecting a claim on the basis of the said fabricated document cannot certainly be brooked back into service, especially after the verdicts of the criminal Courts have gone against him on the offences committed by him. It is true that the petitioner had the benefit of an order of release under the Probation of Offenders Act. But, that shall not wash off his misconduct servicewise and absolve him in disciplinary action. In Shankar Dass v. Union of India , the view taken is that Where a Government servant was convicted of a criminal charge, he could not be said to be not liable to be dismissed in view of provisions of Section 12 of the Probation of Offenders Act when he is released under the beneficial provisions of that Act.
The factors taken note of by the Appellate Court in Criminal proceedings to release the petitioner under the Probation of Offenders Act, should not be taken to be conclusive and the disciplinary authority has undoubted power to independently consider the question of punishment considering the facts of the case from the angle of service parlance and pass the appropriate punishment. After all the Corporation has to set its own business house in order to maintain an impeccable public image. It cannot be called upon to tolerate and entertain back into service, a personnel like the petitioner, found guilty of serious offence. We are fully convinced that the punishment of removal from service is perfectly justifiable and no element of irrationality or perversity has crept in into the question of punishment. Thus, eschewing all the contentions, put forth on behalf of the petitioner, we dismiss this Writ Appeal with costs. Counsel fee Rs. 1,000 (Rupees one thousand only).