Madras High Court
The Superintending Engineer, ... vs The Presiding Officer, Labour Court And ... on 17 June, 2004
ORDER K.P. Sivasubramaniam, J.
1. The management/Tamil Nadu Electricity Board seeks to question the award of the Labour Court, Vellore in I.D. No. 154/93 dated 25.11.1993 ordering the reinstatement of the second respondent/the employee with full back wages.
2. The employee was working as a lineman in Thanipadi Section. The management had received an information on 9.9.1993 that he was working as an operator in a cinema theatre in Thiruvanamalai and he was having cinema operator licence for more than 15 years. According to the management, he was very irregular in attending to the departmental work and he used to sign in the attendant register at 8.00 a.m. at Kilpennathur Section and would return to Thiruvannamalai by 10.00 a.m. and will not go back to the place of work. The management was also informed that he was involved in a case of theft of some lenses valued at Rs.25,000/- and in another criminal case resulting in a conviction under the Suppression of Immoral Traffic in Women and Girls 1956, now renamed as Immoral Traffic (Prevention) Act 1956, hereinafter described as the "Act". Therefore, the employee was issued with a preliminary charge memo on 1.7.1986.
3. The employee by his explanation dated 1.8.1996 stated that though he had obtained a cinema operator licence with a view to seek alternative employment, he did not at all utilise the licence and he never failed in his duties to the Board. As regards the criminal complaint, he contended that the complaint was at the instance of a close relative, who was inimical towards him and had given a false complaint. The occurrence was in the year 1977 long prior to the memo and requested that further action may be dropped.
4. Not being satisfied with the said explanation, a charge memo was issued on 20.3.1987. The following three charges were framed.
"1. Having a Cinema operator Licence without obtaining the permission of the Board. This act constitutes misconduct under Section 30(i) of T.N.E.B. Standing Order.
2. Having worked as Operator in the Meenakshi theatre, T.V. Malai from 25.5.1982 to 30.4.1983 without obtaining proper permission of the Board and hided. The above fact in his explanation dated 4.8.1986. This act constitutes misconduct applicable under Section 30(xxxi) of T.N.E.B. Standing Order.
3. Having arrested on 25.6.1977 by the Sub-Inspector of Police/Thiruvannamalai in Crime No. 825/77 under Section 17(2) and 7(1) S.I.T. Act and convicted and released on a bond of Rs.250/- with one surety to be of good behaviour for one year in STC.No.459/77 dated 4.8.77 by CJM/Vellore (30 xxiv).
5. The explanation was submitted by the employee on 13.4.1987. In the explanation, he submitted that he obtained the cinema operator licence when he was only a temporary assistant workman. As the job prospects were not bright, he has obtained a cinema operator licence. However, after he was made permanent, he felt secure about the job and he did not utilise the licence, and he did not work in Meenakshi Theatre/Tiruvannamalai from 25.5.1982 to 30.4.1983. As regards the criminal case, he contended that the complaint was false and cannot be proceeded with in view of lapse of time. With the result, he requested that further proceedings may be dropped.
6. As the explanation was found unsatisfactory, an enquiry was ordered to be conducted. The enquiry officer found the employee guilty of the charges. The second show cause notice was issued on 8.4.1987. As the explanation was found unsatisfactory, he was dismissed from service. The employee raised an industrial dispute and the Labour Court found that the dismissal was not justified and hence ordered reinstatement with back wages. With the result, this Writ Petition has been filed by the management.
7. Learned counsel for the petitioner/management contends that the Labour Court did not at all frame or consider the issue relating to the fairness of the enquiry and had chosen to comment that the evidence adduced by the management with reference to the charge of dereliction of duty was insufficient and that the management had not produced sufficient oral or documentary evidence to establish that the employee was regularly working in the cinema theatre. As regards the charge of having suffered conviction under the Act, the only ground on which the claim petition was allowed was that the charge was much belated after the conviction. The said reasoning was totally unacceptable as the proceedings were initiated immediately after the fact of conviction came to the knowledge of the management. There can be no time limit for taking action against the employee who is found to have been convicted for an offence involving grave moral turpitude. His continuance in employment will lead to serious indiscipline and lack of proper atmosphere. The further reason that the employee having been let off under the Probation of Offender's Act for good conduct would mean that the conviction cannot have any adverse effect, was illegal and unsustainable.
8. Mr. K. Chandru, learned Senior Counsel for the respondent/employee contends that the Labour Court had rightly held that there was absolutely no evidence on the side of the management to establish the charge that the employee was regularly working in a cinema theatre or that he was irregular in his attendance. As regards the conviction under the Act, learned Senior Counsel fairly agrees that the fact of the employee having been enlarged under the Probation of Offender's Act for good conduct will not have the effect of setting aside the conviction. But, he would submit that the Labour Court had given other valid reasons for ignoring the conviction namely, that it was a stale and belated charge as regards an occurrence which had taken place in 1977 viz., 10 years prior to the charge memo. He would also submit that the concept of an act allegedly involving moral turpitude as a bar to the employment has undergone considerable changes. As long as the employment and the discharge of the duties by the employee were not affected in any manner it would be irrelevant to focus on the personal or private life of the employee out side the premises of the working place. A single instance of an indiscreet action as the respondent in this case was involved with, cannot result in throwing him out of employment.
9. Reliance was placed on the following two judgments and the observations contained therein as regards what conduct or action would amount to a misconduct involving moral turpitude:
(i) M. Anjaiah Vs. Praga Tools Ltd., [(1987 (II) LLJ 78 (Andhra Pradesh)].
(ii) Pawan kumar versus State of Haryana and Another .
10. I have considered the submissions of both sides.
11. The charges against the employee relate to two types of misconduct as categorised under the Tamil Nadu Electricity Board - Standing Orders of Workmen under Clause 30 dealing with acts and omissions constituting misconduct. Clause (xxiv) deals with conviction in any Court of law for any criminal offence involving moral turpitude. Clause (xxxi) deals with accepting service in any other establishment other than that belonging to Board or private remunerative employment from any person.
12. As regards the charge of the delinquent having obtained cinema operator licence and that he was working elsewhere neglecting his duties with the Electricity Board, though there is some evidence to show about his association with the cinema theatre and in his own explanation also, he had submitted that he was on the look out for an alternative employment, I am inclined to agree with the finding of the Labour Court that there is no proper proof of the charge. There is neither any direct nor any oral evidence regarding his alleged regular employment at the theatre, nor any evidence regarding his absence at his work spot. I do not find any strong material to disagree with the finding thus rendered by the Labour Court.
13. However, as regards the charge relating to the conviction suffered by the employee under S.I.T. Act, I find that the reasonings of the Labour Court are not legally sustainable and amount to perverse findings. The fact of conviction is not disputed. In Crime No.459/77 on the file of the Judicial Magistrate, Vellore, by order dated 4.8.1977, on his pleading guilty, the respondent was convicted under Section 7(1) of the S.I.T. Act for the alleged involvement in prostitution in a lodge within a distance of 200 yards from the place of public worship and was directed to be released on a bond for Rs.250/- and bound over for a period of one year for good behaviour. The attempt on the part of the employee to explain away the incident as a result of a false complaint by some one inimically disposed towards him, is not acceptable as no evidence at all had been let in by the employee.
14. The Labour Court had given three reasonings to reject the said charge. Firstly, the charge was much belated. Secondly, as the employee was set free and bound over for good behaviour, it will not amount to a conviction and thirdly, he had been allowed to continue in the job even after conviction. I am inclined to hold that all the three reasonings are unsustainable.
15. As regards the belated nature of the disciplinary proceedings, it is the positive contention of the management that the fact of conviction came to be known to the management only after a public complaint dated 6.9.1983l had been received. Immediately, thereafter, the management had taken steps to ascertain the facts. A preliminary enquiry was conducted with the respondent and the report was submitted on 31.7.1984. It is pertinent to note that even in the preliminary enquiry, the employee had made a false statement to the effect that there was a complaint against him in 1978 and that he was informed by the Magistrate that the complaint against him had been dismissed and that he had not suffered any conviction. No reference number was also furnished by the employee regarding the said proceedings. As a result of such a false statement, the employer had to investigate further and to obtain the details of conviction. The details were furnished by the Sub-Inspector of Police, Thiruvannamalai only on 8.3.1986. Thereafter, the departmental proceedings were promptly taken. Therefore, I am unable to sustain the reason of delay.
16. As regards the effect of employee having been released after being bound over for a period of one year for good behaviour, it is fairly stated that such an order will not have the effect of either acquittal or settling aside the conviction. Consequently, the said finding cannot also be sustained.
17. The third reason that as the employee had been allowed to be continued in service even after he had been convicted is also without any substance. The discussion as above with reference to the question of delay is equally applicable. Action was taken immediately after the conviction of the employee came to light and after the due enquiry, he was dismissed from service. The reasons thus given by the Labour Court are, therefore, unrealistic and perverse.
18. I am also unable to accept the contention that the gravity of moral turpitude is such that extreme penalty of dismissal from service was not warranted. The two decisions as cited above and relied on behalf the respondent are not comparable to the facts of the present case.
19. The decision in 1987 (II) LLJ 78 relates to a conviction of the employee for drinking in a public place and having involved in a quarrel with some persons. The decision in relates to a conviction under Section 294 IPC viz., causing annoyance to the public by doing an obscene act in public or singing or reciting obscene song in public. Except for the general observation in the said judgment that as regards morality, the Courts should take cognisance of the changing moral standards of the society, the decision cannot be applied to a case of conviction for a different offence and in this case, under S.I.T. Act.
20. The expression "moral turpitude" has not been defined in any of the service regulations. It is an expression or misconduct analogous to "conduct unbecoming of a public servant" which has also not been defined. In Ramanatha Aiyar's Law Lexicon, 1940 Edition, at page 832, "Moral Turpitude" is defined as "Anything done contrary to justice, honesty, principle or good morals; an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general contrary to the accepted and customary rule of right and duty between man and man." It is the said definition which is more or less accepted by the Courts generally, while dealing with the scope of the said expression. Therefore, the conduct should not be contrary to law, justice, honesty, modesty, good character in private and social duties or the commission of any shameful act. It is more or less an unwritten code of conduct for public servants and employees in general regarding their official and private life. The conduct which is likely to bring disrepute to the office which is held by the individual concerned or his working place or would tend to create indiscipline among the co-employees or cause embarrassment for the co-employees or even to the customers or visitors to the office, are all matters which would affect the proper functioning of the establishment. Hence, the employer is always entitled to take appropriate action as may be necessary in such cases.
21. It is true that not all conduct or offences which are trivial or technical in nature such as traffic offences or nuisance in public, which might have even ended in a conviction of imprisonment, could be stated to involve moral turpitude. A solitary incident of quarrel in public which might have in fact resulted under some provocation, need not be viewed very seriously as enough to throw the individual jobless and consequently affect the whole family of the individual.
22. But, the offence under S.I.T. Act is not a technical or a trivial one. As the title of the Act itself signifies and now renamed as the Immoral Traffic (Prevention) Act 1956, it relates to an immoral offence. It is an offence against the society and the social and moral values. It involves serious deprivation of human rights especially of women, children and minors who are forced into prostitution for several reasons and in many cases forcibly under threat. Article 23 of the Constitution prohibits traffic in human beings and the legislature was required to pass a law to eradicate the said social evil. The Act was thus passed only on such constitutional mandate. The Act was also passed pursuant to the International Convention signed at New York in 1950. The principle object of the Act is to prevent commercialisation of the vice of trafficking in women and girls. Subsequent amendments were carried out on the basis of the recommendations of the Law Commission. The Act, therefore, deals with an offence which is basically not only immoral but also a grave offence against the society and involves violation of human rights and dignity.
23. A person accused and convicted of an offence under such an Act is sure to cause inconvenience to the co-workers especially women workers and the image of the employer in public. The activities of the Electricity Board involves considerable inter action with the public and to continue such a person on the roll is sure to result in embarrassment.
24. It cannot also be stated that pleading guilty by the accused would have been only due to plea bargaining as may usually happen in a traffic offence or nuisance cases in order to avoid the agony of a trial. Apart from the fact that we cannot surmise, I do not think that any one accused of an offence under the Act, which would positively cause a very serious personal stigma and shame in the society would plead guilty merely for plea bargaining without being actually involved.
25. Therefore, I am unable to agree with the contention that the offence under the Act cannot be construed as not involving moral turpitude. As already stated, the three other reasonings given by the Labour Court cannot be sustained. The Labour Court did not infact record a finding that the offence did not involve moral turpitude. No such argument appears to have been seriously raised before the Labour Court.
26. For all the aforesaid reasons, I am unable to sustain the order of the Labour court. The Writ Petition is allowed and the award of the Labour Court is set aside. No costs.