|Case name||The Divisional Personal Officer, Southern Railway and Another v/s TR Chellappan and Others|
|Case Number||Civil Appeal Nos 1664 of 1974 along with civil appeal nos 891-892 of 1975|
|Court||Supreme Court of India|
|Bench||Justice AC Gupta, Justice Murtaza Fazal Ali, Justice VR Krishna Iyer|
|Author of the judgment||Justice Murtaza Fazal Ali|
|Relevant Act/Sections||1) Constitution of India - Article 311(2)(a)
2) Probation of Offenders Act, 1958 - Section 3, section 12
3) Railway Servants (Discipline and Appeal) Rules, 1968 - Rule 14
|Author of the brief||Aditya Gor|
Brief Facts and Procedural History-
In the present judgment, Civil Appeal Nos. 1664 of 1974, Civil Appeal Nos. 891 & Civil Appeal Nos. 892 of 1975, have been jointly disposed of. A close analysis of the factual data reveals that the grounds on which the respondents have approached the High Court are identical however the reasons noted by the High Courts for quashing the order of the Disciplinary authority are different.
In all the three cases, the respondents have been found guilty by the court and were released on probation under section 3 of the Probation of Offenders Act. After they were released, the disciplinary authorities of the department by its order have removed them from the service in view of the misconduct which has led to the conviction on a criminal charge.
In Civil Appeal No. 1664 of 1974, on an appeal by the respondents the Kerala High Court has held that since the respondent was released by the criminal court and no penalty was imposed, therefore, Rule 14(i) under which the respondent was removed from service did not in terms apply. The High Court accordingly quashed the order passed by the Disciplinary authority.
Similarly, in Civil Appeal No. 891 of 1975, the Jodhpur High Court through its writ jurisdiction quashed the order of removal from service by the Disciplinary authority. The same approach has been taken by the Rajasthan High Court in Civil Appeal No. 892 of 1975. Against all these three judgments of the High Courts, an appeal has been preferred by the appellants.
Grounds for Challenging the order of the High Court-
The appellants have challenged the order of the High Courts on the following grounds:
- Section 12 of the Probation of Offenders Act contemplates an automatic disqualification attached to the conviction of the delinquent employee.
- Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968, is similar in terms to proviso (a) to Article 311 (2) of the Constitution and it confers the power on the appointing authority to pass an order of dismissal against an employee who is found guilty of a criminal offence without giving him any notice.
- In absence of any provision similar to Rule 14, the Government is entitled to dismiss the employee without any further departmental inquiry.
The respondents negated the appeal before the Supreme Court on the ground that mere conviction by the criminal court does not entitle the disciplinary committee to dismiss them from service.
The Ratio of the Court and Decision held-
Whether Rule 14, in terms with the proviso (a) to Article 311(2) of the Constitution, confer the power on the appointing authority to pass an order of dismissal against the employee found guilty of a criminal offence without giving him notice?
The word ‘penalty’ imposed on a railway servant, as mentioned under Rule 14, indicates the nature of the penalty imposable by the disciplinary authority if the delinquent employee has been found guilty of conduct which has led to his conviction on a criminal charge. Rule 14 of the Rules of 1968 appears in Part IV which expressly contains the procedure for imposing penalties. Furthermore, Rule 14 itself refers to Rules 9 to 13 which contain the entire procedure for holding a departmental inquiry. Rule 6 of Part III gives the details regarding the major and minor penalties. Rule 14(i) merely seeks to incorporate the principle contained in proviso (a) to Article 311(2) of the Constitution. A criminal Court after conviction does not impose any penalty but passes a sentence whether it is one of fine, or imprisonment or whipping or the like. In these circumstances, the word ‘penalty’ has been used in juxtaposition to the other connected provisions of the Rules appearing in the same Part.
An analysis of the provision of Article 311(2) contemplates three stages of departmental inquiry before an order of dismissal, removal or reduction can be passed:
- That on receipt of a complaint against a delinquent employee, charges should be framed against him and a departmental inquiry should be held against him in his presence.
- That after the report of the departmental in the query is received, the appointing authority must come to a tentative conclusion regarding the penalty to be imposed on the delinquent employee; and
- That before actually imposing the penalty a final notice to the delinquent employee should be given to show-cause why the penalty proposed against him be not imposed on him.
Proviso (a) to Article 311(2), however, completely dispenses with all the three stages of departmental inquiry when an employee is convicted on a criminal charge. Thus, where once a delinquent employee has been convicted of a criminal offence that should be treated as a sufficient proof of his misconduct and the disciplinary authority may be given the discretion to impose the penalties referred to in Article 311(2), namely, dismissal, removal or reduction in rank.
This proviso (a) to Article 311(2) is merely an enabling provision and it does not enjoin or confer a mandatory duty on the disciplinary authority to pass an Order of dismissal, removal or reduction in rank the moment an employee is convicted. This matter is left completely to the discretion of the disciplinary authority.
What is the effect, of the Order of the Magistrate releasing the accused on probation and the effect of Section 12 of the Probation of Offenders Act?
A perusal of the provisions of the Probation of Offenders Act, 1958, clearly shows that the mere fact that the accused is released on probation does not obliterate the stigma of conviction. Under Sections 3, 4 or 6 of the Act, the stigma continues and the finding of the misconduct resulting in conviction must be treated to be a conclusive proof.
It cannot be said that Section 12 of the Act contemplates an automatic disqualification attaching to a conviction and obliteration of the criminal misconduct of the accused. Disqualification cannot be an automatic consequence of misconduct unless the statute so requires. Proof of misconduct may or may not lead to disqualification because this matter rests on the facts and circumstances of a particular case or the language in which the particular statute is covered. In the instant case, neither Article 311(2) proviso (a) nor Rule 14(i) of the Rules of 1968 contain any express provision that the moment a person is found guilty of misconduct on a criminal charge he will have to be automatically dismissed from service. Article 311(2) proviso (a) is an enabling provision which merely dispenses with the various stages of the departmental inquiry and the show cause notice. Rule 14 despite incorporating the principle of proviso (a) to Article 311(2) enjoins on the disciplinary authority to consider the circumstances of the case before passing any Order. Thus, the employees cannot be automatically dismissed from their service on the grounds of conviction by the Court.
Whether the High Courts of Kerala and Rajasthan were correct in quashing the orders of the disciplinary authorities/committees?
In all these cases the disciplinary authority has proceeded to pass the Order of removal from service straightway on the basis of the conviction of the delinquent employees by the Criminal Courts and the committee did not either considered the circumstances or heard the delinquent employees before reaching the final conclusion. Thus the High Courts of Kerala and Rajasthan were justified in quashing the orders of the disciplinary authorities. This appeal before the Supreme Court thus failed and the parties were directed to bear their own costs.