Andhra HC (Pre-Telangana)
Bharat Heavy Plates & Vessels Ltd. vs Sreeramachandra Murthy And Anr. on 28 December, 1987
Equivalent citations: (1988)IILLJ22AP
JUDGMENT P.A. Choudary, J.
1. This Writ Appeal is filed against a judgment of a learned brother of ours allowing a Writ Petition filed by an employee of the Bharat Heavy Plates and Vessels Ltd.
2. The first respondent to this Writ Appeal was a workman employed by the Bharat Heavy Plates and Vessels Ltd., Visakhapatnam. While young the workman first joined the services of the company on 21st April 1972 as a semiskilled workman, he was promoted subsequently as a machinist. Within three years his luck had run out. While working as a machinist, he was charged for adultery and was convicted in C.C. No. 202 of 1975 on the file of III Additional Judicial First Class Magistrate, Visakhapatnam under Section 497 IPC and was sentenced to undergo one year rigorous imprisonment. On appeal, the learned Sessions Judge, Visakhapatnam in Crl. Appeal No. 231 of 1976 maintained the conviction but suspended the sentence. Instead of sending the young workman to jail the appellate court enlarged the workman on liberty under the provisions of the Probation of Offenders Act, 1958. In his judgment of 22nd February, 1977, the learned Sessions Judge found the accused guilty of the offence of adultery with the wife of P.W. 1, a fellow-workman but found the husband P.W. 1 not keen to send the accused to jail. The workman was young. The learned Sessions Judge, had, therefore, called for a report from the District Probation Officer about the fitness of the workman for being dealt with under the provisions of the Probation of Offenders Act, 1958. On receipt of a favorable report, the learned Sessions Judge placed the workman under the supervision of the Probation Officer for a period of one year giving him the benefit of Section 4(1) and (3) of the Probation of Offenders Act, 1958. Thus ended the criminal case.
3. But the end of the criminal case has been the beginning of the departmental troubles for the workman. On the ground that the workman was convicted by the criminal court for an offence involving moral depravity which was a ground for taking disciplinary action, the Bharat Heavy Plates and Vessels Ltd., the employer of the workman, issued show cause notice to the workman on 11th May 1977 calling upon him to show cause why he should not be dismissed from service. The show-cause notice reads thus :-
Bharat Heavy Plates Limited No. Ref : PA/5/1843 1977-05-11 Memo Shri V. Sreeramachandra Murthy, badge No. 1843, Machinist, is informed that in the Criminal Appeal No. 231/1976, the Sessions Judge, Visakhapatnam confirmed the order of conviction passed against him for committing offence of adultery punishable under Section 497 of the Indian Penal Code. The judgment in the Criminal Appeal No. 231/1976 was pronounced on 2nd February, 1977. The offence of adultery for which he is convicted reveals the depravity of his character and also constitutes moral turpitude, falling under Rule 23(w) of the Standing Orders of Company.
2. The undersigned, therefore, provisionally came to the conclusion that Shri V. Sreeramachandra Murthy is not a fit person to be retained in the services of the Company and tentatively proposes to impose on him the penalty of dismissal from the service of the Company under Rule 25(c) of the Standing Orders of the Company.
3. Shri Sreeramachandra Murthy is hereby given an opportunity of making representation on the penalty proposed against him. Such representation if any should be made in writing so as to reach the undersigned within one week from the date of receipt of this memo failing which it will be presumed that he has no representation to make and action will be taken against him accordingly.
4. The receipt of this memo should be acknowledged.
Sd/- xx xx Disciplinary Authority To, Shri V. Sreeramachandra Murthy, Badge No. 1843, Machinist.
4. After setting out the fact that the Criminal Appeal No. 231 of 1976 was pronounced on 2nd February 1977, the show-cause notice served upon the workman alleged that the offence of adultery for which he was convicted revealed the depravity of his character and that such conduct constitutes moral turpitude falling under Rule 23(w) of the Standing Order of the Company. On the basis of Standing Order 23(w) the Bharat Heavy Plates & Vessels Limited came to the provisional conclusion that the workman was not a fit person to be retained in its services and, therefore, proposed under Standing Order 25(c) to impose on the workman the extreme penalty of dismissal. Accordingly the Company had called upon the workman to show cause why penalty of dismissal should not be imposed on him on the basis of his conviction in the above criminal case. The workman had submitted his explanation to the Bharat Heavy Plates and Vessels Limited on 19th May 1977. But the company did not find the explanation, satisfactory. The company had, therefore, dismissed the workman on 2nd August 1977 from its service. Challenging the order of his dismissal the workman had filed W.P. No. 2360 of 1978. Our learned brother who heard the Writ Petition quashed the order of dismissal by his judgment dated 12th November 1982. A perusal of the judgment shows that the learned Judge quashed the order of dismissal only for the reason that the employer company could not have so dismissed the workman under Standing Order 25(c) of the Company without holding a regular inquiry. The learned Judge held that dismissal on the basis if criminal conviction alone and without holding an independent inquiry into the guilt of workman was not legal. The assumption of the learned Judge was that the workman could be dismissed under Standing Order 25(c) from employment of the company only on the basis of a full-fledged and independent inquiry conducted by the company against the workman establishing his guilt.
5. It is against this order of the learned single Judge this Writ Appeal has been filed by the Bharat Heavy Plates and Vessels Ltd., Visakhapatnam. It is argued by the appellant that the order of the learned Judge is wrong and is contrary to the terms of the Standing Order 25(c), On the other hand, it is argued on behalf of the workman that the dismissal of the workman based, as it was, wholly upon the conviction of the workman in a criminal court without being followed by an independent regular enquiry establishing his guilt would be contrary to the judgment of the Supreme Court reported in Divisional Personnel Officer, Southern Railway v. T. R. Chellapan (19/6-LLJ-68). It is also argued for the workman that once the workman was enlarged to freedom under the Probation of Offenders Act his guilt as much sentence was wiped out. Probation washes the guilt as the water of Ganga washes away the sins.
6. We are unable to agree with either of these two contentions of the workman the first of which found favour with our learned brother. In our opinion both these contentions are contrary to the principles and authorities.
7. The Second Contention :
A bare reading of the Probation of Offenders Act shows that its provisions have nothing to do with the setting aside of the criminal conviction of an accused. On the other hand, those provisions of the Probation of Offenders Act accept the fact of criminal conviction and proceed to deal with a post-conviction situation. They accept a person declared to be offender by a criminal court to have been guilty of the offence. Having thus accepted the conviction of the accused, the Act provides for enlarging the accused to liberty instead of sending the convicted person to jail. All this is in the hope of the convicted person's good conduct and behaviour in future. Enlarging him to freedom is in substitution of imposing sentence of imprisonment on him and not in substitution of his criminal conviction. The title and its enacting provisions of the Probation of Offenders Act leave no scope for a contrary argument. Those provisions clearly show that they have nothing to say or do with the wiping of the offender's guilt established by the verdict of the trial court, if the appellate court's intention is to wash off the guilt found by the trial court, the appellate court could have well quashed the trial court's finding of guilt. In such a case there would have been no need to resort to this circuitous method of maintaining the conviction and suspending sentence. Resort to such a circuitous process to achieve an object open to easy conquest is not the method of law. They very concept of enlarging on probation would be inapplicable to a person found not guilty. The Supreme Court judgment in the Divisional Personnel Officer, Southern Railway v. T. Chellapan (supra) clearly establishes this legal position. In that case the Supreme Court ruled that under the Probation of Offenders Act the guilt of the convicted person is not wiped out. It must, therefore, be held that the Probation of Offenders Act is no more efficacious to wash away the guilt of the convicted person than for the waters of Ganga to purify the body or soul of sinful offender.
8. The First Contention :
The first argument of the workman is even more untenable. But its demonstration calls for a longer statement of the provisions of some of the Standing Orders of the Company applicable to this situation. Standing Order 23 enumerates quite a large number of misconducts far more than the number of letters in the English alphabet. Wilful insubordination or disobedience, wilful slowing down in performance of work, theft, fraud, or dishonesty, late attendance on more than four occasions within a month, habitual breach of any Standing Orders, the sale or canvassing for the sale of tickets or chances in any lottery or raffles within the company premises, drunkenness, rioting, fighting, riotous or disorderly behaviour or conduct likely to cause breach of peace or conduct endangering the life, or any action subversive of discipline in the premises of the company, smoking in the prohibited areas of the company, sleeping while on duty, deliberately making false complaints against the superiors knowing them to be false, or applying for appointment, scholarships, fellowships, travelships or for any training not sponsored by the company otherwise than through the Head of the Departmental Manager, are some of those enumerated misconducts enumerated by the Company's Standing Order 23. Similarly Standing Order 24 mentions the various penalties which the management may impose on the workman for such misconducts. The punishments that can be so awarded on the workman are (i) censure, (ii) fine (iii) suspension as a substantive punishment for a period not exceeding 4 days at a time (iv) withholding of annual increments (v) demotion and (vi) dismissal. The procedure for imposition of punishment is provided in Standing Order 25(c). It reads as follows :-
"If on the conclusion of the enquiry or, as the case may be, of the criminal proceeding, the workman has been found guilty of the charges against him and it is considered, after giving the workman reasonable opportunity of making representation of the penalty proposed, that an order of dismissal, fine, or stoppage of annual increments or reduction would meet the ends of justice, the employer shall pass an order accordingly."
The question is whether this Standing Order 25(c) requires the holding of an independent inquiry to establish the guilt of the workman or its requirements are satisfied by merely acting upon the findings of the criminal court. The management took the second course. After the workman had been convicted by the trial court and enlarged under Probation of Offenders Act by the District Court the management, acting under Clause (c) of the Standing Order 25 had issued a show-cause notice to the workman on 11th May of 1977 calling upon him to show cause why the penalty of dismissal should not be imposed upon him. The workman gave his explanation. It is after that the management had dismissed the workman from the employment of the company. It is this procedure followed by the company which had been found fault with by the learned single judge. We regret to say that we cannot agree with this view of the learned single judge that under Standing Order 25(c) the workman's guilt should be independently established. A bare reading of Clause (c) of Standing Order 25 shows that it requires no procedure different from the one that had been followed by the company in this case. The said Clause (c) authorises the management to give a reasonable opportunity to the workman to show cause against the penalty proposed, taking the fact of his conviction in a criminal court as establishing the workman's guilt. It does not provide for a de nova enquiry into the guilt of the workman. The words 'the workman has been found guilty of the charges framed against him' read in association with words 'the criminal proceeding's can only be understood as referring to criminal charges. We are, therefore, unable to agree with the view of the learned single judge that regular enquiry should be conducted under Clause (c) of the Standing Order, 25. We accordingly reject the workman's first contention also. We hold that the order of dismissal of the workman passed by the company after giving him a reasonable opportunity fully meets the requirements of Rule 25(c).
9. On the above findings, this writ Appeal filed by the Company had to be allowed and the writ petition filed by the workman should be dismissed. But being charged with the duty of enforcing Part III of the Constitution, this court should not be blind to its constitutional duties. We, therefore, took upon ourselves the responsibility to raise the question whether the punishment of dismissal imposed by the company on the workman for the offence of adultery committed by him is not proportionate to the gravity of the misconduct and is, therefore, offensive to the rights of workman guaranteed under Articles 14, 16 and 21 of the Constitution. We may here clear the ground by declaring that the Bharat Heavy Plates and Vessels Ltd. wholly owned and controlled by the Government of India is a 'State' within the meaning of Article 12 of our Constitution and is, therefore, for that reason bound by the limitations which Part III of the Constitution imposes on all State action. In a decision reported in Andhra Pradesh State Road Transport Corporation v. Labour Court, Guntur (FB) to which both of us are parties, a Full Bench of this court propounded the theory that public employment under our Constitution is a new form of property. In that case, this Court held that public employment being a great source of living and happiness to our unemployed millions and being the very essence of personal freedom and opportunity is protected by Articles 14, 16 and 21 of the Constitution. This view of our High Court expressed in the above Full Bench judgment has been approved by the Supreme Court in the decision reported in State of Maharashtra v. Chandrabhan (1983-II-LLJ-256). Acting under the influence of the above constitutional philosophy in Seshachalam v. Administrative Staff College (1984-LIC-256) one of us (P. A. Choudary) had held that a regular servant of the State cannot be removed from public employment by merely following the terms of his contract of employment which provided for such method of removal. A similar view was taken by the Supreme Court in Central Inland Water Ways v. Ganguly (1986-II-LLJ-171). It must, therefore, be taken as established that right to public employment is now an entrenched constitutional right under Articles 14, 16 and 21 of our Constitutional and beyond the reach of the ordinary law and contract. It would be indisputable that extent of such a right to out public employment to be effective would cover the entire area from the recruitment to the termination of the service. Otherwise, it would only be a paper protection because it will be extinguished merely by appointing a personal and removing him next. Thus we hold that the workman's termination of service in this case falls to be tested under Articles 14, 16 and 21 of our Constitution. That is how the test of proportionate punishment becomes applicable. We may mention that the greatest Telugu epic poet Tikkanna had spoken of "Anuchitampudandana" centuries ago. In a decision reported in Bhagat Ram v. State of Himachal Pradesh (1983-II-LLJ-1) our Supreme Court applied these Articles of the Constitution to the departmental sentencing of workman. There the court observed at p. 7, "It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution." The aforesaid judgment of the Supreme Court in Bhagat Ram's case (supra) is an authority for the proposition that the State bound as it is by Articles 14, 16 and 21 of the Constitution is without power to pick and choose at random any of the punishments which the management may impose and its punishment should be proportionate to the gravity of the proved misconduct. We agree that application of this new constitutional principle should be cautiously done We may say normally a court under this doctrine should not interfere with a departmental punishment except for qualitative disproportionateness of the punishment. It means that in our case the management cannot award to its employees the extreme penalty of dismissal without reference to the gravity and nature of the misconduct and the circumstances under which the misconduct was found to have been committed and without examining the desirability and appropriateness of offering a chance to the workman to repent his past and reopen a new life. We do say that in all this the considerations relating to the maintenance of service discipline are not ruled out. On a correct reading of the language of that Standing Order 25(c), it becomes clear that the awarding of penalty under Standing Order 25(c) is treated by that Standing Order not as a mechanical function of the management. Clause (c) of the Standing Order 25 uses the word 'consideration' of the workman's explanation. That word 'consideration' excludes, according to a judgment of the Supreme Court, exclusion of disproportionate punishment. Giving of a reasonable opportunity to the workman to make a representation against the penalty proposed presupposes that there is something for the workman convicted by a Criminal Court to explain regarding the quantum of punishment and that there is something for the employer to consider and modulate the penalty to suit the circumstances of the case. Interpreting similar words occurring in a service rule the Supreme Court in Divisional Personnel Officer, Southern Railway v. T. R. Chellapan (supra) (at pages 78-79) observed that the word 'consider' means the consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person. The Supreme Court in that context observed, '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 fourth ..... it is difficult to lay down any hard and fast rules as to the factors which the disciplinary authority would have to consider. .... 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. .... This is a very salutary provision which has been enshrined in these Rules and one of the purpose for conferring this power is that in cases where the disciplinary authority is satisfied that delinquent employee is a youthful offender who is not convicted of any serious offence and show poignant penitence or real repentence he may be dealt with as lightly as possible. This appears to us to be the scope and ambit of this provision." Under the language of the Standing Order 25(c), it therefore becomes the duty of the management to consider the various factors which have been alluded to in the judgment of the Supreme Court. The age of the workman, the nature of the offence, his past record of service-none of these factors the management had considered. It has blindly awarded the extreme penalty of dismissal. The petitioner has no past record of criminal conviction. He is a youthful offender and the offence committed is one of adultery in which there is no element of deceit, fraud, coercion or undue influence and which is almost condoned by the husband who pleaded with the court that the workman might not be sent to jail. In our view, failure of the management to have considered all these relevant facts in awarding the punishment had vitiated the exercise of the power because it clearly amounted to its failure to consider.
10. One may reasonably doubt whether a conviction by court of court of law for an offence of adultery per se involved moral depravity. A person may be guilty of committing an offence without use of force, fraud, perjury, coercion, cruelty and deceit. But the question is whether in the absence of those elements, an offence can be described as involving moral turpitude. It is highly doubtful that in the absence of those elements, the offence can be described as involving moral depravity.
11. The ancient code of Manu merely provided for varying range of punishments for offence of adultery ranging from simple repentance to the ghastly burning of the offender. From the that Manu thought it enough for a high cast man committing this offence with law caste woman to repent, it is reasonable to conclude that in Manu's views adultery is not per se an offence involving moral depravity. Hindu Matrimonial Laws do not make a single act of adultery as valid ground for granting divorce.
We are, therefore, of the opinion that this young workman whose past record has been all along clean and who has several years of service to look forward ought not have been visited with the extreme penalty of dismissal for the lone act of adultery. For those reasons, we are also of opinion that the punishment by the company is disproportionate with the gravity of offence. We make it clear that we are decline in this not with the question of morality of the offence of adultery but only with the appropriate punishment that can be awarded to a single act of adultery.
12. For the above reasons, we set aside the orders of dismissal passed by the company. In the circumstances of the case where the workman's write petition took nearly 10 years for disposal, we consider it to be just that we should not send back this case to the company. We, therefore, direct the reinstatement of the workman into service of the company within four weeks from the date of the receipt of this order but without back wages. The Writ Appeal is accordingly dismissed. No costs. Advocate's fees : 250.