CASE NO.: Appeal (civil) 2534 of 2007 PETITIONER: Management, Pandiyan Roadways Corp. Ltd. RESPONDENT: N. Balakrishnan DATE OF JUDGMENT: 15/05/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 2534 OF 2007
[Arising out of S.L.P. (Civil) No. 12280 of 2006]
S.B. SINHA, J :
1. Leave granted.
2. Respondent herein was employed as a helper at Kumuli Depot of
Appellant. A criminal complaint was lodged against him for alleged
commission of theft of Rs.37,086.05 on 03.11.1985. A disciplinary
proceeding was also initiated against him. He pleaded not guilty to the said
charge both before the disciplinary authority as also the criminal court. In
the disciplinary proceeding, he was, however, found to be guilty of the said
charge. He was dismissed from services only after a show cause notice
was served on him.
3. Appellant filed an application for approval of the said order of
removal purported to be in terms of Section 33(2)(b) of the Industrial
Disputes Act, 1947 (for short, ‘the Act’). Approval sought for was not
granted on the premise that in passing the said order of termination, Clause
17(5) of the Certified Standing Orders of the Corporation, which required
the management to take into account the past record before passing the order
of dismissal, was not complied with.
4. During pendency of the said proceedings before the Tribunal,
admittedly the Criminal Court held the respondent not guilty of commission
of the charge of removal of the said amount of Rs. 37,086.05. He was,
therefore, acquitted.
5. A Writ Petition was filed by the appellant questioning the said Order
of the Labour Court which was marked as Writ Petition No. 1485/1990. A
learned Single Judge of the said Court allowed the Writ Petition. Aggrieved
by and dissatisfied therewith, Respondent preferred an appeal before a
Division Bench of the High Court. By reason of the impugned judgment,
the said appeal has been allowed holding :
“14. Unfortunately, the learned Judge while
accepting the case of Management, committed two
errors. The first one is that he proceeded that the
charge leveled against the workman relates to
misappropriation. It is not in dispute that based on
the complaint of the Management, prosecution was
launched against the workmen for the offence of theft,
which also ended in acquittal in C.C. No. 75 of 1986
on the file of Judicial Magistrate, Uthamapalyam
dated 14.10.1987. Secondly, the learned Judge
committed an error in holding that when an employee
is involved in the case of misappropriation of funds,
no lesser punishment than the dismissal from service
can be imposed. However, according to the learned
Judge when a major punishment is to be imposed
depending upon the nature or gravity of the offence,
then the factors mentioned in clause 17(5) of the
Standing Orders have some relevance.”
6. Appellant is, thus, before us.
7. Mr. T. Harish Kumar, learned counsel appearing on behalf of the
appellant, would submit that Clause 17(5) of the Certified Standing Orders
of the Corporation cannot be held to be imperative in character. According
to the learned counsel, in a case of misconduct involving criminal breach of
trust, the employer would be justified in imposing a punishment of
termination of services and in that view of the matter, question of looking
into the past conduct of the employee would not arise.
8. It was contended that past conduct of an employee would be taken
into consideration, only in the event the misconduct proved is not a grave
one. In a matter involving commission of grave misconduct on the part of
the workman, it was contended, there is no place for generosity or sympathy
and the case has to be dealt with firmly. Reliance, in this behalf, has been
placed on Janatha Bazar (South Kanara Central Cooperative Wholesale
Stores Ltd.) and Others v. Secretary, Sahakari Naukarara Sangha and Others
(2000) 7 SCC 517] and Divisional Controller, KSRTC (NWKRTC) v.
A.T. Mane [(2005) 3 SCC 254].
9. The learned counsel argued that it was not a case where the High
Court could have taken into consideration the question as to whether the
punishment imposed was shockingly disproportionate to the misconduct
proved. It was urged that the jurisdiction of the Labour Court in considering
the petition under Section 33(2)(b) Act being limited; it could not reappraise
the evidence adduced in the disciplinary proceeding. Even acquittal in a
criminal proceeding Mr. Harish Kumar submitted, could not have any effect
in a domestic enquiry, in view of the fact that the standard of proof in
criminal proceeding and domestic enquiry is entirely different. Strong
reliance, in this behalf, has been placed on South Bengal State Transport
Corporation v. Sapan Kumar Mitra and Others [(2006) 2 SCC 584] and N.
Selvaraj v. Kumbakonam City Union Bank Ltd. and Another [(2006) 9 SCC
172].
10. Mr. S. Guru Krishna Kumar, learned counsel appearing on behalf of
the respondent, on the other hand, would submit that it is not a case where
this Court should exercise its discretionary jurisdiction under Article 136 of
the Constitution of India. It was contended that clause 17(5) of the Certified
Standing Orders was clearly applicable and the conditions laid down therein
must be considered before imposition of punishment keeping in view its
cumulative effect. The learned counsel would contend that clause 17(5) of
the Certified Standing Orders is mandatory in character. It was also
contended that admittedly past conduct of the respondent has not been
considered while imposing the punishment. It was urged that the conduct
of the respondent was otherwise blemishless otherwise. Our attention, in
this behalf, has been drawn to the fact that in terms of the order of the
Labour Court refusing to grant approval, the respondent was taken back in
service in the year 1989 and since then he has been working in the bank
without any blemish whatsoever. The learned counsel would submit that the
order of acquittal passed by the Criminal Court having been taken into
consideration by the Division Bench, the same should be considered to be an
additional factor apart from the factors contained in Clause 17(5) of the
Certified Standing Orders.
11. Clause 17(5) of the Standing Orders of the Corporation reads as
under :
“In awarding the punishment under this standing order
the employer shall take into account the gravity of the
misconduct, the previous record of the workman and
any other extenuation or aggravating circumstances that
may exist.”
12. On a plain reading of the said provision and particularly in view of the
fact that the word “shall” has been used, prima facie it would be construed
to be imperative in character. It may, however, be held to be directory in
certain situation. While construing a statute of this nature, the context plays
an important role. Interpretation of a statute would also depend upon the
fact situation obtaining in the case. There are, however, certain exceptions
to the said rule. The question came up for consideration before this Court in
U.P. State Electricity Board v. Shiv Mohan Singh and Another [(2004) 8
SCC 402] wherein it was, inter-alia, noticed :
“96. Ordinarily, although the word shall is considered to
be imperative in nature but it has to be interpreted as
directory if the context or the intention otherwise
demands. (See Sainik Motors v. State of Rajasthan, AIR
para )
97. It is important to note that in Crawford on Statutory
Construction at p. 539, it is stated:
271. Miscellaneous implied exceptions from the
requirements of mandatory statutes, in
general.Even where a statute is clearly mandatory
or prohibitory, yet, in many instances, the courts
will regard certain conduct beyond the prohibition
of the statute through the use of various devices or
principles. Most, if not all of these devices find
their justification in considerations of justice. It is
a well-known fact that often to enforce the law to
its letter produces manifest injustice, for frequently
equitable and humane considerations, and other
considerations of a closely related nature, would
seem to be of a sufficient calibre to excuse or
justify a technical violation of the law.
105. Only because the expression shall has been
employed in sub-section (4) of Section 4, the same may
not be held to be imperative in character having regard to
the fact that not only, as noticed hereinbefore, a contract
of apprenticeship commences but also in view of the fact
that an application for registration of apprenticeship
contract is required to be made within a period of three
months in terms of Rule 4-B of the Apprenticeship Rules,
1992. The Act nowhere provides for the consequences of
non-registration.
109. It is now a well-settled principle of law that if the
language used in a statute is capable of bearing more than
one construction, the true meaning thereof should be
selected having regard to the consequences resulting
from adopting the alternative constructions. A
construction resulting in hardship, non-fulfilment of the
purpose for which the statute has been brought in force
should be rejected and should be given that construction
which avoids such results.”
13. Yet again in P.T. Rajan v. T.P.M. Sahir and Others [(2003) 8 SCC
498], this Court observed :
“45. A statute as is well known must be read in the text
and context thereof. Whether a statute is directory or
mandatory would not be dependent on the user of the
words shall or may. Such a question must be posed and
answered having regard to the purpose and object it seeks
to achieve.
46. What is mandatory is the requirement of sub-section
(3) of Section 23 of the 1950 Act and not the ministerial
action of actual publication of Form 16.
47. The construction of a statute will depend on the
purport and object for which the same had been used. In
the instant case the 1960 Rules do not fix any time for
publication of the electoral rolls. On the other hand
Section 23(3) of the 1950 Act categorically mandates that
direction can be issued for revision in the electoral roll by
way of amendment in inclusion and deletion from the
electoral roll till the date specified for filing nomination.
The electoral roll as revised by reason of such directions
can therefore be amended only thereafter. On the basis of
direction issued by the competent authority in relation to
an application filed for inclusion of a voters name, a
nomination can be filed. The person concerned,
therefore, would not be inconvenienced or in any way be
prejudiced only because the revised electoral roll in Form
16 is published a few hours later. The result of filing of
such nomination would become known to the parties
concerned also after 3.00 p.m.
48. Furthermore, even if the statute specifies a time for
publication of the electoral roll, the same by itself could
not have been held to be mandatory. Such a provision
would be directory in nature. It is a well-settled principle
of law that where a statutory functionary is asked to
perform a statutory duty within the time prescribed
therefor, the same would be directory and not mandatory.
(See Shiveshwar Prasad Sinha v. District Magistrate of
Monghyr, Nomita Chowdhury v. State of W.B. and
Garbari Union Coop. Agricultural Credit Society Ltd. v.
Swapan Kumar Jana)
49. Furthermore, a provision in a statute which is
procedural in nature although employs the word shall
may not be held to be mandatory if thereby no prejudice
is caused. (See Raza Buland Sugar Co. Ltd. v. Municipal
Board, Rampur, State Bank of Patiala v. S.K. Sharma,
Venkataswamappa v. Special Dy. Commr. (Revenue) and
Rai Vimal Krishna v. State of Bihar.)”
14. In Ashok Lanka and Another v. Rishi Dixit and Others [(2005) 5 SCC
598], it was held :
“53. The question as to whether a statute is mandatory or
directory would depend upon the statutory scheme. It is
now well known that use of the expression shall or may
by itself is not decisive. The court while construing a
statute must consider all relevant factors including the
purpose and object the statute seeks to achieve. (See P.T.
Rajan v. T.P.M. Sahir and U.P. SEB v. Shiv Mohan
Singh.)”
15. There cannot also be any doubt that ordinarily consequences flowing
from contravention of an imperative character of a statute has to be given
effect to. A statutory provision may be substantive or procedural. If it is
substantive, the requirements laid down in the statute should ordinarily be
complied with. However, when the provisions contain a procedural matter,
substantial compliance thereof would serve the purpose.
16. Application of a statute or principle of law, however, may vary from
case to case.
17. Only because the statute is imperative, it may not necessarily lead to a
declaration that the order impugned is a nullity.
18. In State Bank of Patiala and Others v. S.K. Sharma [(1996) 3 SCC
364], this Court has, inter alia, laid down the law in the following terms :
“33. We may summarise the principles emerging from
the above discussion. (These are by no means intended to
be exhaustive and are evolved keeping in view the
context of disciplinary enquiries and orders of
punishment imposed by an employer upon the
employee):
(4)(a) In the case of a procedural provision which
is not of a mandatory character, the complaint of
violation has to be examined from the standpoint
of substantial compliance. Be that as it may, the
order passed in violation of such a provision can
be set aside only where such violation has
occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural
provision, which is of a mandatory character, it has
to be ascertained whether the provision is
conceived in the interest of the person proceeded
against or in public interest. If it is found to be the
former, then it must be seen whether the
delinquent officer has waived the said requirement,
either expressly or by his conduct. If he is found to
have waived it, then the order of punishment
cannot be set aside on the ground of the said
violation. If, on the other hand, it is found that the
delinquent officer/employee has not waived it or
that the provision could not be waived by him,
then the Court or Tribunal should make
appropriate directions (include the setting aside of
the order of punishment), keeping in mind the
approach adopted by the Constitution Bench in B.
Karunakar18. The ultimate test is always the
same, viz., test of prejudice or the test of fair
hearing, as it may be called.”
19. Ordinarily, although sub-clause (5) of Clause (17) of the Certified
Standing Orders is required to be complied with, the same, in our opinion,
would not mean that in a given situation, there cannot be any deviation
therefrom. In a case where dismissal or removal of service is to be
ordinarily followed, e.g. in a case of grave misconduct like
misappropriation, strict enforcement of the rule may not be insisted upon.
When, we say so, we are not oblivious of the law that an executive agency is
ordinarily bound by the standard by which it professes its actions to be
judged. [See Harjit Singh & Another v. The State of Punjab & Another
[2007) (3) SCALE 553]. But where a procedural provision merely embodied
the principles of natural justice, in view of the decision of this Court in State
Bank of Patiala (supra), the question as to whether the principle has been
followed or not, will depend upon the fact situation obtaining in each case.
[See Ashok Kumar Sonkar v. Union of India & Others [2007 (3) SCALE
517].
20. It will be useful to note that in State of Punjab and Others v.
Sukhwinder Singh [(1999) SCC (L&S) 1234], this Court has held that the
words “gravest act of misconduct” occurring in Rule 16.2(1) of the Punjab
Police Rules need not be used in the order of punishment, as it can be found
out from the factual matrix obtaining in each case.
21. However, there is another aspect of the matter which cannot be lost
sight of. Respondent, in the meanwhile, has been acquitted. The factum of
his acquittal has been taken into consideration by the Division Bench, which
was considered to be an additional factor. Ordinarily, the question as to
whether acquittal in a criminal case will be conclusive in regard to the order
of punishment imposed upon the delinquent officer in a departmental
proceeding is a matter which will again depend upon the fact situation
involved in a given case.
22. There are evidently two lines of decisions of this Court operating in
the field. One being the cases which would come within the purview of
Capt. Paul Anthony v. Bharat Gold Mines Ltd. and Another [(1999) 3 SCC
679] and G.M. Tank v. State of Gujarat and Others [(2006) 5 SCC 446].
However, the second line of decisions show that an honourable acquittal in
the criminal case itself may not be held to be determinative in respect of
order of punishment meted out to the delinquent officer, inter alia, when :
(i) the order of acquittal has not been passed on the same set of fact or same
set of evidence; (ii) the effect of difference in the standard of proof in a
criminal trial and disciplinary proceeding has not been considered. [See
Commissioner of Police, New Delhi v. Narender Singh (2006) 4 SCC 265],
or; where the delinquent officer was charged with something more than the
subject-matter of the criminal case and/or covered by a decision of the Civil
Court. [See G.M. Tank (supra), Jasbir Singh v. Punjab & Sind Bank and
Others – 2006 (11) SCALE 204, and Noida Enterprises Assn. v. Noida &
Others – 2007 (2) SCALE 131 Para 18]
23. In Narinder Mohan Arya v. United India Insurance Co. Ltd. and
Others [(2006) 4 SCC 713], this Court held :
“39. Under certain circumstances, a decision of a civil
court is also binding upon the criminal court although,
converse is not true. (See Karam Chand Ganga Prasad
v. Union of India). However, it is also true that the
standard of proof in a criminal case and civil case is
different.
40. We may notice that in Capt. M. Paul Anthony v.
Bharat Gold Mines Ltd., this Court observed: (SCC p.
695, para 35)
“35. Since the facts and the evidence in
both the proceedings, namely, the departmental
proceedings and the criminal case wee the same
without there being any iota of difference, the
distinction, which is usually drawn as between the
departmental proceedings and the criminal case on
the basis of approach and burden of proof, would
not be applicable to the instance case.”
41. We may not be understood to have laid down a law
that in all such circumstances the decision of the civil
court or the criminal court would be binding on the
disciplinary authorities as this Court in large number of
decisions points out that the same would depend upon
other factors as well. See e.g. Krishnakali Tea Estate v.
Akhil Bharatiya Chah Mazdoor Sangh and Manager,
Reserve bank of India v. S. Mani. Each case is,
therefore, required to be considered on its own facts.
24. In Delhi Cloth and General Mills Co. v. Ganesh Dutt and Others
[(1972) 4 SCC 834], this Court stated :
“31. Mr. Sharma referred us to Paragraph 40 of the
Certified Standing Orders of the appellant Company Ex.
M-4 to the effect that in the order deciding to dismiss the
workman, the appellant Company has not taken into
account, as it is bound to, the previous record, if any, of
the workmen. This contention cannot be accepted
because in the order dated May 9, 1966, communicated
to each of the workmen, in the penultimate paragraph it
has been stated that while arriving at the decision to
dismiss the employees from the service for misconduct,
all relevant circumstances including the past record of
service, have been fully taken into consideration. So far
as we could see, no challenge has been made by the
workmen that the appellant has not taken into account his
past record.”
25. We are, however, of the opinion that it is not a fit case where this
Court should exercise its extra extra-ordinary jurisdiction under Article 136
of the Constitution of India. Respondent has been taken back in service in
the year 1989. The occurrence took place in the year 1985. The
application under Section 33(2)(b) of the Act was filed on 16.06.1986. It
was rejected by an order dated 19.4.1989. Respondent, thereafter, was taken
back in service. Despite the fact that the Writ Petition filed by the appellant
was allowed on 08.10.1999, by reason of an interim order of stay granted by
the Division Bench, he continued in his service. By reason of the impugned
judgment, the Division Bench, as noticed hereinbefore, set aside the
judgment of the learned Single Judge. Respondent is merely a class IV
employee, it does not hold any office of confidence. He was not charged
with an offence of criminal breach of trust.
26. Thus, it is now well-settled principle of law that this Court shall not
exercise its jurisdiction under Article 136 of the Constitution of India, only
because it may be lawful to do so. [See Transmission Corporation of A.P.
Ltd. v. Lanco Kondapalli Power (P) Ltd. (2006) 5 SCC 540] and Chandra
Singh and Others v. State of Rajasthan and Another [(2003) 6 SCC 545].
27. For the reasons aforementioned, the appeal is dismissed. However, in
the facts and circumstances of the case, there shall be no order as to costs.