9911796707
TMI Blog2005 (9) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2005 (petitioner in Writ Petition No. 703 of 2004) joined the service of Indian Oil Corporation ('Corporation' for short) at Haldia Refinery in 1973. He was a senior officer of the Corporation. He asserted that all throughout his service record was good and satisfactory. He was sincere and efficient and has worked with dedication. At several occasions, he received appreciation for his work. There was no grievance or complaint by the authorities and he continued to be a 'devoted employee' of the Corporation. It was, no doubt, stated that in 1987, a charge sheet was issued against him but according to the appellant, subsequently, the Corporation was satisfied on the explanation submitted by the appellant that there was no substance in the allegations and the same was, therefore, withdrawn.. On 11th March, 1988, the appellant was promoted as Operator 'A' Special Grade. It is the case of the appellant that his next door neighbour was one Mrs. Parul Jana, who was Sister-in-Charge in the Refinery Hospital at Haldia. Parul Jana was treating the appellant as her brother. The relationship between both the families was close and cordial and whenever necessary, Parul Jana used to call the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgery, he was very much upset as outsiders brought by Dr. Bhattacharya started pushing and dragging the persons including the appellant and sons of Parul Jana out of the hospital. The appellant was bewildered and motionless for some time. The appellant apprehended that Dr. Bhattacharya would create a situation which may adversely affect appellant's health. There was heated exchange of words which resulted in commotion. There was scuffle on the arrival of outsiders and two sons of Parul Jana out of hospital premises. The appellant immediately contacted the General Manager (Projects) and requested him to help to control the situation. When the General Manager reached the hospital, the appellant explained the situation to him. The General Manager also met Dr. Bhattacharya to get true and correct facts as to how the incident had happened. The General Manager then advised the appellant to go back. Immediately, the appellant left the hospital. In the entire incident, asserted the appellant, save and except accompanying sons of Parul Jana, he did nothing. He was not involved in the incident in any manner whatsoever. It was the Chief Medical Officer, who alone was responsible for the entir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judge to have passed ex parte ad-interim order. The appeal was accordingly disposed of. So far as criminal case is concerned, the learned Judicial Magistrate before whom the case was placed for hearing disposed it of on 5th April, 2002 and the appellant was acquitted. The Writ Petition came up for hearing before the learned single Judge who dismissed it on July 9, 2002. The appellant preferred an appeal before the Division Bench against the order passed by the learned single Judge which, as stated above, came to be dismissed by the Division Bench. Against the said order, the appellant had approached this Court by filing Special Leave Petition on May 17, 2004. When the matter was placed for admission on July 27, 2004, notice was issued by this Court. On July 25, 2005, it was placed before a two Judge Bench. Leave was granted and the Court passed the following order: "Delay condoned. Leave granted. In view of the fact that there are conflicting decisions in the case of Workmen of Hindustan Steel Ltd. vs. Hindustan Steel Ltd. & Ors. reported in 1984 (Suppl.) SCC 554 and in the case Haripada Khan vs. Union of India & Ors. reported in 1996(1) SCC 536 it will be appropriate that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be held liable. He had merely accompanied the two sons of Parul Jana to the hospital. The unfortunate incident was the result of the behaviour of the Chief Medical Officer for which, he alone was responsible and the appellant could not be punished for the misdeeds of Dr. Bhattacharya. It was further submitted by Mr. Rao that this is a fit case in which necessary guidelines are required to be issued by this Court so that blanket and uncanalised power under the said provision may not be misused by the General Manager. It was also submitted that when the criminal case was registered against the appellant and he was acquitted of the charges leveled against him, it was incumbent on the Corporation to reinstate him in service with full back wages. Finally, it was submitted that the appellant has reached the age of superannuation. The question of reinstatement is thus academic. It was, therefore, prayed that keeping in view the totality of facts, the order passed by the General Manager may be quashed and set aside by directing the respondent to extend monetary benefits to the appellant. The learned counsel for the respondent-Corporation, on the other hand, supported the order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicata. It was also submitted that the order passed by the General Manager is subject to appeal under Standing Order 21 of the Standing Orders and the appellant had exercised the said right by filing an appeal. The Appellate Authority considered the relevant provisions of Standing Orders as also the order dated 6th May, 1999 passed by the General Manager and having applied its mind to the facts and circumstances, dismissed the appeal observing that there was no ground to interfere with the punishment imposed on the appellant. It was, therefore, submitted that no case has been made out by the appellant and the appeal deserves to be dismissed. Since the appellant had not challenged the validity of Clause (vi) of Stranding Order 20 before the High Court, his petition is not maintainable and may also be dismissed. Having heard the learned counsel for the parties, we are of the view that the appeal as well as the writ petition deserve to be dismissed. So far as preliminary objection as to maintainability of the petition in this Court and the applicability of res judicata in the appeal is concerned, it is true that the appellant had not taken the ground as to vires of Clause (vi) of Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside. As far as the status of the appellant is concerned, it must be stated that Mr. Rao, Senior Advocate fairly conceded at the hearing of the appeal and the writ petition that the appellant is not governed by Article 311 of the Constitution since he cannot be said to be 'civil servant'. In this connection, it will be profitable to refer to a decision of the Constitution Bench of this Court in Dr. S. L. Agarwal vs. General Manager, Hindustan Steel Limited (Hindustan Steel Limited I); (1970) 3 SCR 363 ; (1970) 1 SCC 177. In that case, A was appointed as Assistant Surgeon by the Board of Directors of the Corporation for one year. After completion of the probation period, he was employed on contract basis and his services were terminated in accordance with the terms of the contract. He filed a writ petition in the High Court contending that his services were wrongly terminated which was violative of Article 311 of the Constitution. The Corporation contended that Article 311 was not applicable to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 31." The language of Standing Order 32 is 'more or less' similar to Standing Order 20 (vi) of the Certified Standing Orders of the respondent- Corporation which reads as under; "Where a workman has been convicted for a criminal offence in a Court of Law or where the General Manager is satisfied for reasons to be recorded in writing, that it is neither expedient nor in the interest of security to continue the workman, the workman may be removed or dismissed from service without following the procedure laid down under III of this Clause." The workman challenged the action inter alia on the ground that provision of Standing Order 32 is irrational, arbitrary and violative of Article 311. The Court proceeded to consider the objection against Standing Order 32 on the touchstone of Article 311. Describing the provision as 'archaic standing order reminiscent of the days of hire and fire' relied upon by a public sector undertaking to sustain an utterly unsustainable order and to justify an action taken in violation of the principles of natural justice, the Court stated that such a provision could not stand. Reproducing Article 311 of the Constitution, the Court held that the minimu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... theft of oil and a First Information Report was lodged against him. On the basis of that report, a criminal case was registered and he was arrested. Relying on Standing Order 20 (iv) of the Corporation, he was dismissed from service. Standing Order 20(iv), as then stood, was similar to present Standing Order 20(vi) and empowered the General Manager of the Corporation to dismiss a workman if he had been convicted for a criminal offence in a court of law or if the General Manager was satisfied for reasons to be recorded in writing that it was neither expedient nor in the interest of the Corporation to continue the workman in service. Standing Order 20(iv) read thus; "Where a workman has been convicted for a criminal offence in a Court of Law or where the General Manager is satisfied for reasons to be recorded in writing, that there is neither expedient nor in the interest of security to continue the workman, the workman may be removed or dismissed from service without following the procedure laid down under III of this clause." The action of the Corporation was challenged by the dismissed employee. Upholding the order of the Corporation, this Court held that the action could be ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Hari Pada Khan, therefore, does not apply to the factual matrix of the present case for claiming relief by the appellant. The appellant in Hari Pada Khan relied upon Hindustan Steel Limited (II), and submitted that in that case, this Court struck down a similar provision being violative of natural justice and also violative of Article 14. The Court, however, held that the principles of natural justice had no application when the authority was of the opinion that it would be inexpedient to hold an enquiry and it would be against the interest of security of the Corporation to continue in employment the offender workman when serious acts were likely to affect the foundation of the institution. The Court also noted that a similar provision was held valid and intra vires by this Court in Mathura Refinery Mazdoor Sangh v. Deputy Chief Labour Commissioner & Others, Special Leave Petition (Civil) NO. 11659 of 1992, decided on November 13, 1995. Mr. Rao then contended that even though the provision of Article 311 of the Constitution do not apply to the appellant being an employee of the Corporation, the general principles behind the said provision would apply to the employees of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warrant its exclusion. The maxim audi alteram partem could not be invoked if import of such maxim would have the effect of paralyzing the administrative process or where the need for promptitude or the urgency so demands. The Court stated that if legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortiori so can a provision of the Constitution, for a constitutional provision has a far greater and all pervading sanctity than a statutory provision. It also stated that the principles of natural justice having been expressly excluded by a constitutional provision, namely, the second proviso to Article 311(2), it could not be reintroduced by a side door by providing for the enquiry. The Court, however, hastened to add that where the second proviso to Article 311(2) is applied on an extraneous ground or a ground having no relation to the situation envisaged in that clause, the action would be mala fide and void. In such a case, invalidating factor may be refereable to Article 14. The second proviso to Article 311(2) was based on public policy, in public interest and for public good and it must be given ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Manager and not of the Corporation. Clause (c) of second proviso to Article 311(2) of the Constitution envisages the satisfaction of constitutional functionary, i.e. President of India or Governor of a State. In the case of the respondent-Corporation, however, the power is conferred on General Manager \026 an officer of the Corporation. If this provision is upheld, there is every possibility and likelihood of power being abused or misused. Such provision must, therefore, be held arbitrary and ultra vires of Article 14. We are unable to agree with the learned counsel. The law is clear on the point. Tulsi Ram Patel dealt with a similar provision and held it to be constitutionally valid and intra vires Article 14. Since it related to civil servants under the Union or under a State, Clause (c) provided for the satisfaction by the President or the Governor, as the case may be, "in the interests of the security of the State". Certified Standing Orders of the respondent-Corporation have limited application to the Corporation. There was, therefore, no question of security of State and hence, the limited power is conferred on the General Manager of security of the Corporation. General M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on would not be discriminatory." Again, in the leading case of State of Rajasthan & Others v. Union of India & Others, (1977) 3 SCC 592, a seven-Judge Bench was called upon to consider a similar argument. It was urged that extraordinary power conferred by Article 356 of the Constitution could be abused. Negativing the contention, Bhagwati, J. (as he then was) stated; "It must be remembered that merely because power may sometime be abused, it is no ground for denying the existence of the power. The wisdom of man has not yet been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief". (emphasis supplied) Very recently, in Sushil Kumar Sharma v. Union of India & Others, (2005) 6 SCC 281, constitutional validity of Section 498-A of the Penal Code was challenged inter alia on the ground of its misuse and/or abuse. A prayer similar to one which has been made before us by Senior Advocate Mr. Rao was also made in Sushil Kumar Sharma that in case the provision is held to be constitutional and intra-vires, this Court may formulate "guidelines" so that innocent persons are not victimized by unscrupulous elements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ager that an immediate action is necessary, he can dismiss or remove the workman. Such workman, however, may invoke Standing Order 21 and may file an appeal and convince the Appellate Authority that the action taken by the General Manager in purported exercise of power under Standing Order 20(vi) was unlawful or improper. If the Appellate Authority is satisfied, it may set aside the action of the General Manager and grant appropriate relief to the workman. Even if the Appellate Authority holds against the workman and confirms the order of dismissal/removal, judicial review is available to the aggrieved appellant, albeit on limited grounds. To us, therefore, it is clear that the Standing Order 20(vi) allows the General Manager to take an action in emergency keeping in view exceptional situation which has arisen and he is satisfied that the workman should be removed or dismissed from service without following procedure laid down in Standing Order 20(iii). Whereas Standing Order 20(iii) deals with cases in general and provides enquiry and pre-decisional hearing, Standing Order 20(vi) is an exception to the general rule and deals with special cases under which an action can be taken. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... associates prevented anyone present there from making any contact outside even on phone. On coming to know about the incident, some officers reached the site. They were also abused and threatened by the appellant. The General Manager then went through the complaints/reports of various persons present during and immediately after the incident and on careful examination of the material, he was satisfied that the appellant indulged himself in the acts of violence without any valid reason or compelling circumstances or provocation. Those acts of appellant resulted into an atmosphere of terror being created within the hospital premises. The doctors of the hospital have jointly submitted a representation expressing their concern and demoralizing and terrorising effect that was created in the minds of the hospital staff. The General Manager also noted that the situation had arisen out of the incident which resulted into suspension of the hospital services resulting into great inconvenience being caused to the residents of the Refinery Township. The Officers' Association which was the recognized Union had condemned the incident and demanded stern action. The General Manager perused the Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erious impact the incident may have on the normal operation of the Refinery. On those grounds, and in the facts and circumstances, the General Manager was satisfied that it was not in the interest of the security of the Refinery and Staff to continue the appellant in the employment of the Corporation and accordingly he had dispensed with the enquiry under Standing Order 20(iii) and exercised power under Standing Order 20(vi) and passed the impugned order. In our opinion, such action can never be termed arbitrary, irrational or unreasonable. When the appellant preferred an appeal against the order passed by the General Manager, the Appellate Authority considered the facts and circumstances of the case and dismissed the appeal by an order dated 11th December, 2001. The Appellate Authority noted that the appellant in his Memorandum of Appeal did not deny various acts of misconduct leading to the serious incident of 6th May, 1999 at Haldia Refinery. The appellant also did not put forward any explanation or provocation for the unfortunate incident but had accepted that he engaged in certain acts which he would not like to remember. The Appellate Authority, therefore, held that the acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wing (RAW) without holding inquiry as contemplated by Article 311(2) of the Constitution. The power was exercised by the disciplinary authority under the second proviso to Article 311(2). Reiterating the principles laid down in Tulsi Ram Patel and upholding the action, the Court observed that there are circumstances in which such a drastic action is called for. The Court noted that it was not possible to enumerate the cases in which it would not be reasonably practicable to hold inquiry under Article 311(2), but certain illustrative cases have been highlighted which included activities of terrorizing, threatening or intimidating witnesses who might be giving evidence against a civil servant or threatening, intimidating or terrorizing disciplinary authority or his family members or creating an atmosphere of violence or general indiscipline and insubordination. The Court also indicated that though it was a mandate of the Constitution to record reasons in writing for dispensing with an inquiry, it was not necessary that such reasons should find place in the final order or they should be communicated to the delinquent. It was no doubt emphasised that it would be better if such reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uested for taking a strong action against the petitioner (appellant herein) and no lenient view was called for. Even after sons of Parul Jana came down from the 1st floor and informed the petitioner that their mother's condition was stable, the petitioner continued the agitation. Being an employee of the Corporation, the petitioner had no business to lead unruly mob resulting in damage to property and assaulting the hospital-staff who were on duty and were treating patients including a patient having cardiac treatment. The learned single Judge, therefore, concluded ; "If such discipline is not considered to be grave, I do not know what more should be appropriate to justify the order of dismissal". When an intra-court appeal was filed against that order, the Division Bench again considered the contentions raised by the appellant. Dealing with the argument that the documents were not given, it was submitted on behalf of the Corporation that no such prayer was made. The Court, therefore, observed relying on a decision of this Court in Aligarh Muslim University & Others v. Mansoor Ali Khan, AIR 2000 SC 2783 that no prejudice had been caused to the appellant. The Court examined the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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