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TMI Blog2005 (9) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... e (vi) of Standing Order 20 of the Certified Standing Orders of the Indian Oil Corporation Ltd.-respondent herein being arbitrary and against the principles of natural justice. To appreciate the controversy raised in the matters, relevant facts may be stated in brief. The appellant in Civil Appeal No. 4544 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the explanation submitted by the appellant that there was no substance in the allegations and the same was, therefore, withdrawn..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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of Dr. Bhattacharya. Dr. Bhattacharya called several persons in the hospital and directed them to throw all persons including the appellant out of the hospital premises. Sons of Parul Jana could not control themselves. The appellant was also not spared. Being a heart patient and already had undergone heart surgery, 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge granting ex parte ad-interim relief, the Corporation approached the Division Bench and the Division Bench by an order dated June 22, 1999 set aside the order passed by the learned single Judge. According to the Division Bench, in the facts and circumstances of the case, it was not proper for the learned single 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultra vires Article 14 as also Article 311 (2) of the Constitution. The counsel also submitted that the learned single Judge as well as the Division Bench were wrong in not relying upon the decisions cited at the Bar and in mechanically and blindly applying Clause (vi) of the Standing Order 20. Even on merits, the appellant 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 reinstat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 20 before the learned single Judge or before the Division Bench and argued the matter on merits and the case was decided against him. He, therefore, now cannot be permitted to challenge the validity of Clause (vi) of Standing Order 20 before this Court as such challenge would be barred by res judicata or by constructive res judicata. 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of preponderance of probability . Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, 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 perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man 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 inexpedient or against the interests of security to continue to employ the workman, the workman may be removed or dismissed from service without following the procedure laid down in Standing Order 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 archai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een drawn to the decision of the Constitution Bench in Hindustan Steel Limited (I). At the time of admission hearing, reference was also made to another two Judge Bench decision of this Court in Hari Pada Khan vs. Union of India Others, (1996) 1 SCC 536. In that case, the petitioner who was a permanent staff member of Indian Oil Corporation was involved in 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the result of the trial. The facts of the case before us are totally different. In this case, the General Manager has exercised the power under the second part of the Standing Order 20(vi) which empowered him to take action on satisfaction for reasons to be recorded in writing that it was not in the interest of security to continue the workman in service. The direction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcluded. Both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct in taking of prompt action, such a right could be excluded. It could also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is neither expedient nor in the interest of security to continue a workman. He submitted that the power under Clause (vi) of Standing Order 20 is a serious inroad on the right of a workman and must be construed strictly. In other words, it is a drastic provision which totally excludes application of natural justice and audi alteram partem rule and that too on satisfaction of General 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kitachalam Potti Anr. 1955 (2) SCR 1196, dealing with a similar contention, speaking for the Constitution Bench, Bhagwati, J. stated; It is to be presumed, unless the contrary were shown that the administration of a particular law would be done not with an evil eye and unequal hand and the selection made by the Government of the cases of persons to be referred for investigation by the Commission 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and the Appellate Authority has to decide such appeal of a workman in accordance with law after affording him reasonable opportunity. It also allows the appellant-workman to have assistance of a co-worker. It, therefore, cannot be said that once an action is taken under Clause (vi) of Standing Order 20, the matter is over. In view of exceptional situation contemplated by Clause (vi) and on satisfaction of the General Manager 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led reasons have been recorded by the General Manager inter alia stating that the appellant herein had led a bunch of hooligans to Haldia Refinery Hospital and assaulted and abused Dr. Bhattacharya, the Chief Medical Officer, when he was in the hospital alongwith other doctors attending a critical patient in the indoors. The appellant had slapped, kicked, pushed around and dragged Dr. Bhattacharya. The appellant alongwith his 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 effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Staff in particular and to immediately restore the confidence of the Officers community, of their security in due discharge of their duties honourably and fearlessly, and in the interest of the security of the Refinery, firm action was necessary. He was convinced that delay would seriously jeopardize the interest of the Corporation especially the vital requirement of providing Medical Services to the sick and needy and the serious 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king of appropriate action in exceptional circumstances is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. Normally, it is the officer on the spot who is the best judge of the situation and his decision should not be interfered with lightly. In Satyavir Singh, this Court considered orders of dismissal passed against some of the employees of Research and Analysis 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one through the decision of the learned single Judge as well as of the Division Bench. It is clear from the record of the case that the Writ Petition was filed by the appellant immediately after the order of dismissal was passed against him and the learned single Judge considered the legality of the order. The learned single Judge perused the relevant record produced at the time of hearing and noted that the alleged incident did take place. All persons requested 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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