sentence of fine as imposed. Section 117 of the Bombay Police Act is a
punishing Section and the substantive sentence for the present purpose is
Section 116 of the Bombay Police Act, which reads thus :
“116. Disregard of notice in public building.
No person shall, in any Court, Police Station, Police
Office, building occupied by Government or building
occupied by any public body, smoke or spit in contravention
of a notice by a competent authority in charge of such place
and fixed to such Court, Station, office or building.”
Evidently, the act of entering Court building chewing Pan is
not covered in this Section. It is trite that any provision defining an offence
has to be read and construed strictly. There is no scope for liberal
construction in such a case. We would again hasten to add that this may
not be read as approving the act of the petitioner in entering the Court
room chewing Pan. However, it has to be seen, that strictly speaking the act
did not fall under Section 116 of the Act. In our considered opinion, the
petitioner cannot be precluded from demonstrating the same in the present
proceeding, notwithstanding a formal challenge being raised to the order of
conviction and sentence. This is more so, when the same has resulted into a
drastic civil consequence to the petitioner, of sustaining dismissal from
service. We, therefore, find that going by the phraseology as used in
Section 116 of the Act, the act did not strictly fall in the same.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4732/2003
Dnyanshwar Vithuji Ghude Vs State of Maharashtra
CORAM
: A.P. BHANGALE AND
C.V. BHADANG, JJ.
Date of pronouncing the judgment : 01.10.2014
Citation;2015(2) ALLMR 647
1. Heard Advocate Shri Shelat for the petitioner and learned
Assistant Government Pleader Shri Rao for the respondents.
2. The petitioner joined the service as a Sepoy at Central Prison,
Nagpur on 1.11.19964 and was eventually confirmed on 1.11.1965. The
petitioner had put in 26 years of service before his dismissal on 8.9.1990,
which order is subject matter of challenge in this petition.
3. On 29.4.1988, it is said that the petitioner was on leave and
had gone to the Court of Judicial Magistrate First Class, Darwha District
Yavatmal for his personal work. It so happened that the petitioner entered
the Court room, chewing Pan. The learned Magistrate, taking cognizance of
the incident, issued a showcausenotice
to the petitioner and proceeded to
convict him for the offence punishable under Sections 116 and 117 of the
Bombay Police Act (Fort short “the Act”). The petitioner was accordingly
fined for Rs.50/for
the said offence.
It appears that this incident and consequent order of
conviction and sentence was not brought to the notice of his superiors by
the petitioner. It further appears that subsequently it came to the
knowledge of the competent authority, who proceeded to dismiss the
petitioner from service by an order dated 8.9.1990 on the ground that it is
not in public interest to retain the petitioner in service.
4. The petitioner challenged this order of dismissal in a
departmental appeal before the Deputy Inspector of General Central Prison,
Eastern Region, Nagpur. By an order dated 17.12.1990 the appeal came to
be dismissed thereby confirming the order dated 8.9.1990. This was
challenged by the petitioner in Writ Petition No.2904/1990 before this
Court. On constitution of the Maharashtra Administrative Tribunal (MAT),
the writ petition was transferred to the MAT and was registered as T.A.
No.1391/1992. The learned Members of the MAT by a judgment and order
dated 8.10.2003 has been pleased to dismiss the transfer application,
which order is subject matter of challenge in the present petition.
5. The respondents have filed a return and have opposed the
petition. It is contended that the petitioner was convicted and sentenced
under the provisions of the Bombay Police Act in the year 1988 and the
conduct of the petitioner as a member of disciplined force was unbecoming
of a public servant. The petitioner also did not bring to the notice of the
superiors the incident and the consequent order passed. It was only in the
year 1990 that the information was received and acting on the basis of the
conviction and in particular the Government Circular dated 12.6.1986
(Annexure RI),
the competent authority has inflicted the punishment of
dismissal. It is submitted that the departmental appeal as well as challenge
before the MAT has been rightly negatived.
6. It is submitted by the learned Counsel for the petitioner that
the basis on which the order is passed is firstly the conviction and the
sentence in the nature of fine imposed under Sections 116 and 117 of the
Act and secondly on the allegation that this was not brought to the notice
of the competent authority by the petitioner. The learned Counsel submits
that so far as the later ground is concerned, the privilege enjoyed by the
competent authority under proviso (a) to Article 311 (2) of the
Constitution of India would not be available. In other words, it is submitted
that it is only on the basis of the conviction, the competent/disciplinary
authority can act under proviso (a) to Article 311 (2) of the Constitution of
India. It is, thus, submitted that insofar as the ground of non:::
communication of the incident by the petitioner is concerned, it would
require a showcausenotice
before the same is acted upon. It is undisputed
that such a showcausenotice
has not been issued. He, therefore,
submitted that the second ground/reason would not survive and cannot be
called into aid in support of the impugned action. Insofar as the ground of
conviction is concerned, there are twofold submissions. It is submitted that
having regard to the provisions of Sections 116 and 117 of the Act, the act
of the petitioner of entering the Court room chewing Pan would not be
covered thereunder. It is submitted that Section 116 of the Act, which is
material for the purpose only speaks of smoking and spiting in
contravention of a notice by competent authority in charge of such
Government building or the building occupied by any public body or Court.
Thus, it is submitted that Sections 116 and 117 of the Act were not
attracted. Secondly, it is submitted that the order of dismissal in such a case
is not automatic and the competent/disciplinary authority has to apply its
mind to the facts and circumstances of the case, peruse the judgment of the
Criminal Court and then proceed to take action, as may be deemed
necessary.
7. The learned Counsel has placed reliance on a constitution
Bench decision of the Hon'ble Supreme Court in the case of Union of India
and another…Versus…Tulsiram Patel and others reported in AIR 1985,
SC 1416, The Divisional Personnel Officer Southern Railway and
another...Versus...T.R. Challappan, reported in AIR 1975 SC 2216 and
Shankar Dass…Versus…Union of India and another reported in AIR
1985 SC 772. It is submitted that there is nothing in the present case to
show that the disciplinary authority had applied its mind and had taken a
decision in the light of the various factors as set out in Challappan’s case
(Supra). It is submitted that the misconduct was not of such a nature,
character and degree, which would call for a stringent action of dismissal
from service.
8. The learned Counsel then submitted that once the order of
dismissal is found to be illegal, the consequent order of reinstatement with
back wages/salary and all consequential benefits has to be passed. Reliance
in this regard is placed on the decision of the Hon’ble Supreme Court in the
case of Deepali Gundu Surwase...Versus...Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and others, reported in (2013) 10 SCC 324.
9. On the contrary, it is submitted by the learned Assistant
Government Pleader that the conduct of the petitioner in entering the
Court hall chewing Pan was grossly unbecoming of a public servant and a
member of disciplined force. The learned Assistant Government Pleader
would submit that the petitioner being an employee serving in Central
Prison ought to be aware of the decorum which is expected to be
maintained while he appears before the Court of law. He submitted that
this would be notwithstanding the fact that the petitioner may be on leave
and might have attended the Court for his personal work.
10. Insofar as the argument based on Sections 116 and 117 of the
is concerned, it is contended that the petitioner has not challenged the
conviction and imposition of fine before the competent Court. As such, the
said judgment and order having attained finality cannot now be questioned
in collateral proceedings. The learned Assistant Government Pleader also
submitted that the competent authority as well as the appellate authority
has considered all the relevant aspects of the matter and have consciously
reached the decision and the same does not call for any interference.
11. At the outset, it may be mentioned that the contention of the
petitioner as raised in the petition that he was on leave on 29.4.1988 and
had gone to the Court of the Judicial Magistrate First Class, Darwha for his
personal work has not been specifically controverted. Thus, we have to
proceed on the assumption that the petitioner was on leave on that day and
had attended the Court for his personal reason. We would hasten to add
that this is not to suggest that the petitioner can behave in a fashion as has
been done, inasmuch as even an ordinary citizen is expected to maintain
the decorum before the Court of law and more so when he happens to be a
member of a disciplined force as the petitioner. However, that apart the
question in the present case is about the appreciation of the nature of the
proceedings initiated, the fine imposed and the action taken by the
disciplinary authority based on such conviction.
12. The learned Judicial Magistrate had issued following showcausenotice
to the petitioner.
“To,
Dnyaneshwar s/o Vithuji Ghude,
Aged about 47 years, Head Constable,
District Prison, Yavatmal.
That you on 29488
at 1240
P.M. in the court
premises entered into court chewing pan which is prohibited
under section 116, 117 of the Bombay Police Act.
You are, therefore, directed to submit your
explanation within half an hour as to why legal action
should not be taken against you.”
It is not in dispute that the petitioner was subsequently
convicted and sentenced with fine of Rs.50/under
Sections 116 and 117
of the Act and under Chapter XXI of the Code of Criminal Procedure. In
default of payment of fine, he was sentenced to undergo imprisonment of
15 days. The petitioner, however, has opted to deposit the fine. Acting on
the conviction, Superintendent, Central Prison passed the following order
on 08.09.1990.
“Whereas Shri Dyaneshwar Vithuji Ghude
while working as Sepoy in Yavatmal District Prison has
been convicted on 29.4.1988 by Judicial Magistrate First
Class, Darvha under section 116 and section 117 of the
Bombay Police Act (Case No.1 of 1988) Under Chapter 21
of Criminal Procedure Code. (Rule two, 1974) and fined
Rs.50/(
Rupees Fifty) and in default to undergo sentence
of 15 days. The judgment copy dated 1990
in respect of
this conviction has been received in this office.
Shri Dnyaneshwar Vithuji Ghude has not informed in
writing about the above incident to this office or to the
Superintendent Yavatmal Prison.
And whereas considering the conduct of
Shri Dnyaneshwar Vithuji Ghude, Sepoy Amravati Central
Prison, it is not proper to continue him in the public
employment since he has been convicted.
And therefore as per the authority given to
me under rule 13 (A) (3) of the Maharashtra Civil Services
(Discipline and Appeal) Rules, 1979. The undersigned
dismissed Shri Dnyaneshwar Vithuji Ghude, Sepoy
Amravati Central Prison from State Services w.e.f.
891990.”
13. It may be mentioned that under proviso (a) to Article 311 (2)
of the Constitution of India the disciplinary authority can only act on the
basis of conviction and in that case issuance of showcausenotice
to the
delinquent or an opportunity of hearing is not envisaged.
14. In the case of T.R. Challappan (Supra) the respondent was a
RailwayPointsman.
He was arrested for disorderly behaviour on Olavakkot
Railway Station platform in a drunken condition and of having behaved in
an indecent manner. A Criminal Case under Section 51 (A) of the Kerala
Police Act was registered against him. The learned SubMagistrate
after
finding delinquent guilty had extended benefit of Section 3 of the
Probation of Offenders Act instead of sentencing him. The disciplinary
authority, acting on the same, had removed him from service, in view of the
misconduct which has led to his conviction on a criminal charge under
Section 51 (A) of the Kerala Police Act. The Hon'ble Supreme Court,
considering two other similar cases which are decided by the common
judgment, has held thus, in paragraph no.6 of the judgment.
“6. A close analysis of the facts of the
cases of each of the respondents would doubtless reveal
that the points involved in the three cases are almost
identical, though the grounds on which the respective High
Courts have proceeded may be slightly different. Mr. S.N.
Prasad appearing of the appellants in all the three cases
raised three points before us :
(1) That Section 12 of the Probation of
Offenders Act contemplates an automatic disqualification
attached to the conviction and not an obliteration of the
misconduct of the accused so as to debar the Disciplinary
Authority from imposing penalties under the Rules against
an employee who has been convicted for misconduct.
(2) Rule 14 of the Railway Servants
(Discipline and Appeal) Rules, 1968, is in terms similar to
proviso (a) to Art. 311 (2) of the Constitution and confers
power on the appointing authority to pass an order of
dismissal against an employee who is found guilty of a
criminal offence without giving any further notice to the
delinquent employee. Further, Rule 14 does not in terms
contemplate that the appointing authority will consider the
penalty after either hearing the accused or after ordering
special inquiry.
(3) That in the absence of any provision
similar to Rule 14 the Government is entitled, in the
exercise of its executive power, to terminate the services of
the employee who has been convicted of a criminal charge
without any further departmental inquiry.”
15. A constitution Bench of the Hon'ble Supreme Court in the
case of Union of India and another...Versus...Tulsiram Patel and others
(Supra) had considered the “pleasure doctrine” as enshrined under
Articles 310 and 311 of the Constitution of India and has held thus in
paragraph no.127 of the judgment:
“127. Not much remains to be said about
clause (a) of the second proviso to Article 311 (2). To
recapitulate briefly, where a disciplinary authority comes to
know that a government servant has been convicted on a
criminal charge, it must consider whether his conduct which
has led to his conviction was such as warrants the imposition
of a penalty and, if so, what that penalty should be. For that
purpose it will have to peruse the judgment of the criminal
court and consider all the facts and circumstances of the case
and the various factors set out in Challappan's case (AIR
1975 SC 2216). This, however, has to be done by it ex parte
and by itself. Once the disciplinary authority reaches the
conclusion that the government servant's conduct was such
as to require his dismissal or removal from service or
reduction in rank he must decide which of these three
penalties should be imposed on him. This too it has to do by
itself and without hearing the concerned government servant
by reason of the exclusionary effect of the second proviso.
The disciplinary authority must, however, bear in mind that a
conviction on a criminal charge does not automatically entail
dismissal, removal or reduction in rank of the concerned
government servant. Having decided which of these three
penalties is required to be imposed, he has to pass the
requisite order. A government servant who is aggrieved by
the penalty imposed can agitate in appeal, revision or review,
as the case may be, that the penalty was too severe or
excessive and not warranted by the facts and circumstances
of the case. If it is his case that he is not the government
servant who has been in fact convicted, he can also agitate
this question in appeal, revision or review. If he fails in all
the departmental remedies and still wants to pursue the
matter, he can invoke the court's power of judicial review
subject to the court permitting it. If the court finds that he
was not in fact the person convicted, it will strike down the
impugned order and order him to be reinstated in service.
Where the court finds that the penalty imposed by the
impugned order is arbitrary or grossly excessive or out of all
proportion to the offence committed or not warranted by the
facts and circumstances of the case or the requirements of
that particular government service the court will also strike
down the impugned order. Thus, in Shankar Dass v. Union of
India (1985) 2 SCC 358 : (AIR 1985 SC 772) this Court set
aside the impugned order of penalty on the ground that the
penalty of dismissal from service imposed upon the appellant
was whimsical and ordered his reinstatement in service with
full back wages. It is, however, not necessary that the court
should always order reinstatement. The court can instead
substitute a penalty which in its opinion would be just and
proper in the circumstances of the case.”
(Emphasis supplied)
16. In the case of Shankar Dass (Supra) it has been held that the
power under Second proviso (a) to Article 311 (2) of the Constitution of
India has to be exercised fairly, justly and reasonably.
17. It would be thus clear that in such a case the competent
authority has to peruse the judgment of the Criminal Court and consider all
the facts and circumstances of the case and the various factors set out in
T.R. Challappan's case and then come to the proper conclusion about any
of the three punishments, namely, of dismissal, removal or reduction in
rank, which can be imposed on the delinquent/employee.
18. In the present case, so far as the ground of
noncommunication
of the incident and the consequent conviction and
sentence by the petitioner to the superior authority is concerned, the
competent authority could not have proceeded on the basis of the same
taking recourse to second proviso (a) to Article 311 (2) of the Constitution
of India. In other words, the misconduct of noncommunication
of the
order would be a separate head of charge, which although related to the
conviction was subsequent in point of time and cannot be said to be
integrally connected, so as to give privilege to the disciplinary authority to
act under the proviso (a) to Article 311 (2) of the Constitution of India. We
find that insofar as this head of the allegation is concerned, it clearly would
have required showcausenotice
offering opportunity to the petitioner to
explain his stand in this regard, if any, before the same could have been
acted upon.
19. Thus, the question which remains is about the conviction and
sentence of fine as imposed. Section 117 of the Bombay Police Act is a
punishing Section and the substantive sentence for the present purpose is
Section 116 of the Bombay Police Act, which reads thus :
“116. Disregard of notice in public building.
No person shall, in any Court, Police Station, Police
Office, building occupied by Government or building
occupied by any public body, smoke or spit in contravention
of a notice by a competent authority in charge of such place
and fixed to such Court, Station, office or building.”
Evidently, the act of entering Court building chewing Pan is
not covered in this Section. It is trite that any provision defining an offence
has to be read and construed strictly. There is no scope for liberal
construction in such a case. We would again hasten to add that this may
not be read as approving the act of the petitioner in entering the Court
room chewing Pan. However, it has to be seen, that strictly speaking the act
did not fall under Section 116 of the Act. In our considered opinion, the
petitioner cannot be precluded from demonstrating the same in the present
proceeding, notwithstanding a formal challenge being raised to the order of
conviction and sentence. This is more so, when the same has resulted into a
drastic civil consequence to the petitioner, of sustaining dismissal from
service. We, therefore, find that going by the phraseology as used in
Section 116 of the Act, the act did not strictly fall in the same. Be that as it
may, assuming that the act did fall under Section 116 of the Act, the
question is whether the competent authority was justified in imposing the
punishment of dismissal on the petitioner. The only reason given is that the
petitioner being a member of a disciplined force was not expected to act in
this manner. Insofar as the second ground about the noncommunication
of
the incident is concerned, we have already found that it cannot be made
basis of the order, which is relatable to the second proviso (a) to
Article 311 (2) of the Constitution of India. We have given our anxious
consideration to the facts and circumstances of the case and the rival
submissions advanced and we are unable to persuade ourself to hold that
the action can be justified on the basis of such conviction and sentence of
fine. We find that the punishment was shockingly disproportionate to the
misconduct which has led to the conviction. Thus, the impugned order has
to be set aside. This takes us to the next question as to what relief needs to
be granted. It is undisputed that the petitioner has since reached the age of
superannuation on 30.9.2003. It is now 24 years that the impugned order
of dismissal was passed. In view of the fact that the petitioner has already
reached the age of superannuation long before, there is no question of
physical reinstatement of the petitioner in service. The question is only
about the monetary benefits, namely, retiral benefits as also the back
wages/salary.
20. In the case of Deepali (Supra) the appellant was working as a
teacher in a primary school, who was proceeded against departmentally on
charges of insubordination etc. and was placed under suspension and was
subsequently terminated. The School Tribunal found action of the
Management wholly arbitrary and vitiated due to violation of principles of
natural justice. The School Tribunal also took cognizance of the fact that
the appellant was not gainfully employed and this aspect was not
controverted by the Management. The School Tribunal, in such
circumstances, ordered her reinstatement with full back wages. That order
was modified by a learned Single Judge of this Court as regards payment of
the back wages. That was the order which was subject matter of challenge
before the Hon'ble Supreme Court. It has been inter alia held that, as a
normal rule an employee becomes entitled to reinstatement with back
wages, once the dismissal/termination, is found to be illegal. After taking
survey of the various decisions, the Hon'ble Apex Court has culled out the
following principles on the question of grant of back wages.
“(i) In cases of wrongful termination of
service, reinstatement with continuity of service and back
wages is the normal rule.
(ii) The aforesaid rule is subject to the rider
that while deciding the issue of back wages, the
adjudicating authority or the court may take into
consideration the length of service of the
employee/workman, the nature of misconduct, if any, found
proved against the employee/workman, the financial
condition of the employer and similar other factors.
(iii) Ordinarily, an employee or workman
whose services are terminated and who is desirous of
getting back wages is required to either plead or at least
make a statement before the adjudicating authority or the
court of first instance that he/she was not gainfully
employed or was employed on lesser wages. If the employer
wants to avoid payment of full back wages, then it has to
plead and also lead cogent evidence to prove that the
employee/workman was gainfully employed and was
getting wages equal to the wages he/she was drawing prior
to the termination of service. This is so because it is settled
law that the burden of proof of the existence of a particular
fact lies on the person who makes a positive averment
about its existence. It is always easier to prove a positive
fact than to prove a negative fact. Therefore, once the
employee shows that he was not employed, the onus lies on
the employer to specifically plead and prove that the
employee was gainfully employed and was getting the same
or substantially similar emoluments.
(iv) The cases in which the Labour
Court/Industrial Tribunal exercises power under
Section 11A
of the Industrial Disputes Act, 1947 and finds
that even though the enquiry held against the
employee/workman is consistent with the rules of natural
justice and/or certified standing orders, if any, but holds
that the punishment was disproportionate to the
misconduct found proved, then it will have the discretion
not to award full back wages. However, if the Labour
Court/Industrial Tribunal finds that the employee or
workman is not at all guilty of any misconduct or that the
employer had foisted a false charge, then there will be
ample justification for award of full back wages.
(v) The cases in which the competent court
or tribunal finds that the employer has acted in gross
violation of the statutory provisions and/or the principles of
natural justice or is guilty of victimising the employee or
workman, then the court or tribunal concerned will be fully
justified in directing payment of full back wages. In such
cases, the superior courts should not exercise power under
Article 226 or Article 136 of the Constitution and interfere
with the award passed by the Labour Court, etc. merely
because there is a possibility of forming a different opinion
on the entitlement of the employee/workman to get full
back wages or the employer's obligation to pay the same.
The courts must always keep in view that in the cases of
wrongful/illegal termination of service, the wrongdoer is
the employer and sufferer is the employee/workman and
there is no justification to give a premium to the employer
of his wrongdoings by relieving him of the burden to pay to
the employee/workman his dues in the form of full back
wages.
(vi) In a number of cases, the superior
courts have interfered with the award of the primary
adjudicatory authority on the premise that finalisation of
litigation has taken long time ignoring that in majority of
cases the parties are not responsible for such delays. Lack of
infrastructure and manpower is the principal cause for
delay in the disposal of cases. For this the litigants cannot
be blamed or penalised. It would amount to grave injustice
to an employee or workman if he is denied back wages
simply because there is long lapse of time between the
termination of his service and finality given to the order of
reinstatement. The courts should bear in mind that in most
of these cases, the employer is in an advantageous position
visavis
the employee or workman. He can avail the
services of best legal brain for prolonging the agony of the
sufferer i.e. the employee or workman, who can illafford
the luxury of spending money on a lawyer with certain
amount of fame. Therefore, in such cases it would be
prudent to adopt the course suggested in Hindustan Tin
Works (P) Ltd. (1979) 2 SCC 80.
(vii) The observation made in J.K. Synthetics
Ltd. case, (2007) 2 SCC 433 that on reinstatement the
employee/workman cannot claim continuity of service as of
right is contrary to the ratio of the judgments of threeJudge
Benches and cannot be treated as good law. This part
of the judgment is also against the very concept of
reinstatement of an employee/workman.”
It can thus be seen that it is the normal rule to grant back
wages/salary once the Court/Tribunal awards reinstatement. However, this
normal rule is subject to wellknown
exceptions and there is a discretion in
the matter of grant of back wages/salary. Albeit such a discretion is judicial
in nature and has to be exercised in the facts and circumstances of each
case and no straitjacket
formula can be laid down. In the case of Upekshit
Samaj Kalyan Samiti, Ballarpur...Versus...Education Officer (Secondary)
and others, reported in (2009) 15 SCC 194, the Hon'ble Apex Court had
restricted the back wages to 50%, while in the case of South Bengal State
Transport Corporation...Versus...Ashok Kumar Ghosh and others,
reported in (2010) 11 SCC 71 it was held that, where the punishment was
set aside on a technical ground, the back wages could not be granted and
were accordingly denied.
21. In the present case, the appellate authority while deciding the
departmental appeal has noticed the previous service record of the
petitioner. It has been found that during the previous service the petitioner
was inflicted with various punishments on seven occasions, which included
withholding of annual increments on three occasions. The misconduct also
included disorderly behaviour while on duty under the influence of liquor
and abusing the Jail Superintendent. The appellate authority has also noted
the confidential reports from the year 1972.
22. On overall consideration of the rival circumstances, we find
that the petitioner would not be entitled to the back wages/salary. The only
relief which can be granted is notional reinstatement with the retiral
benefits. In that view of the matter, the following order is passed.
ORDER
(i) Writ Petition is partly allowed. The impugned order of
dismissal dated 8.9.1990 is hereby set aside. The petitioner is notionally
reinstated in service, however, without back wages/salary.
(ii) The petitioner shall be entitled to all retiral benefits
including pension by treating him as retired normally on superannuation.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
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