{"id":127038,"date":"2007-05-15T00:00:00","date_gmt":"2007-05-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/management-pandiyan-roadways-vs-n-balakrishnan-on-15-may-2007"},"modified":"2016-01-19T10:13:13","modified_gmt":"2016-01-19T04:43:13","slug":"management-pandiyan-roadways-vs-n-balakrishnan-on-15-may-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/management-pandiyan-roadways-vs-n-balakrishnan-on-15-may-2007","title":{"rendered":"Management, Pandiyan Roadways … vs N. Balakrishnan on 15 May, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Management, Pandiyan Roadways … vs N. Balakrishnan on 15 May, 2007<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  2534 of 2007\n\nPETITIONER:\nManagement, Pandiyan Roadways Corp. Ltd.\n\nRESPONDENT:\nN. Balakrishnan\n\nDATE OF JUDGMENT: 15\/05\/2007\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CIVIL APPEAL NO. 2534  OF 2007
\n[Arising out of S.L.P. (Civil) No. 12280 of 2006]<\/p>\n
S.B. SINHA, J :\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tRespondent herein was employed as a helper at Kumuli Depot of
\nAppellant.  A criminal complaint was lodged against him for alleged
\ncommission of theft of Rs.37,086.05 on 03.11.1985. A disciplinary
\nproceeding was also initiated against him.  He pleaded not guilty to the said
\ncharge both before the disciplinary authority as also the criminal court.  In
\nthe disciplinary proceeding,  he was, however, found to be guilty of the said
\ncharge.   He was dismissed from services only  after a show cause notice
\nwas served on him.\n<\/p>\n
3.\tAppellant filed an application for approval of the said order of
\nremoval purported to be in terms of Section 33(2)(b) of the Industrial
\nDisputes Act, 1947 (for short, ‘the Act’).  Approval sought for was not
\ngranted on the premise that in passing the said order of termination, Clause
\n17(5) of the Certified Standing Orders of the Corporation,  which required
\nthe management to take into account the past record before passing the order
\nof dismissal, was not complied with.\n<\/p>\n
4.\tDuring pendency of the said proceedings before the Tribunal,
\nadmittedly the Criminal Court held the respondent not guilty of commission
\nof the charge of removal of the said amount of Rs. 37,086.05.  He was,
\ntherefore, acquitted.\n<\/p>\n
5.\tA Writ Petition was filed by the appellant questioning the said Order
\nof the Labour Court which was marked as Writ Petition No. 1485\/1990.   A
\nlearned Single Judge of the said Court allowed the Writ Petition.   Aggrieved
\nby and dissatisfied therewith, Respondent preferred an appeal before a
\nDivision Bench of the High Court.   By reason of the impugned judgment,
\nthe said appeal has been allowed holding :\n<\/p>\n
“14.\tUnfortunately, the learned Judge while
\naccepting the case of Management, committed two
\nerrors.   The first one is that he proceeded that the
\ncharge leveled against the workman relates to
\nmisappropriation.   It is not in dispute that based on
\nthe complaint of the Management, prosecution was
\nlaunched against the workmen for the offence of theft,
\nwhich also ended in acquittal in C.C. No. 75 of 1986
\non the file of Judicial Magistrate, Uthamapalyam
\ndated 14.10.1987. Secondly, the learned Judge
\ncommitted an error in holding that when an employee
\nis involved in the case of misappropriation of funds,
\nno lesser punishment than the dismissal from service
\ncan be imposed.   However, according to the learned
\nJudge when a major punishment is to be imposed
\ndepending upon the nature or gravity of the offence,
\nthen the factors mentioned in clause 17(5) of the
\nStanding Orders have some relevance.”\n<\/p>\n
6.\tAppellant is, thus, before us.\n<\/p>\n
7.\tMr. T. Harish Kumar, learned counsel appearing on behalf of the
\nappellant, would submit that Clause 17(5) of the Certified Standing Orders
\nof the Corporation cannot be held to be imperative in character.   According
\nto the learned counsel, in a case of misconduct involving criminal breach of
\ntrust, the employer would be justified in imposing a punishment of
\ntermination of services and in that view of the matter, question of looking
\ninto the past conduct of the employee would not arise.\n<\/p>\n
8.\tIt was contended that past conduct of an employee would be taken
\ninto consideration, only in the event the misconduct proved is not a grave
\none.   In a matter involving commission of grave misconduct on the part of
\nthe workman, it was contended,  there is no place for generosity or sympathy
\nand the case has to be dealt with firmly. Reliance, in this behalf, has been
\nplaced on Janatha Bazar (South Kanara Central Cooperative Wholesale
\nStores Ltd.) and Others v. Secretary, Sahakari Naukarara Sangha and Others<\/a>
\n(2000) 7 SCC 517]  and Divisional Controller,  KSRTC (NWKRTC)  v.
\nA.T. Mane<\/a> [(2005) 3 SCC 254].\n<\/p>\n
9.\tThe learned counsel argued that it was not a case where the High
\nCourt could have taken into consideration the question as to whether the
\npunishment imposed was shockingly disproportionate to the misconduct
\nproved. It was urged that the jurisdiction of the Labour Court in considering
\nthe petition under Section 33(2)(b) Act being limited;  it could not reappraise
\nthe evidence adduced in the disciplinary proceeding.  Even acquittal in a
\ncriminal proceeding Mr. Harish Kumar submitted,  could not have any effect
\nin a domestic enquiry, in view of the fact that the standard of proof in
\ncriminal proceeding and domestic enquiry is entirely different.   Strong
\nreliance, in this behalf, has been placed on South Bengal State Transport
\nCorporation v. Sapan Kumar Mitra and Others<\/a> [(2006) 2 SCC 584]  and N.
\nSelvaraj v. Kumbakonam City Union Bank Ltd. and Another [(2006) 9 SCC
\n172].\n<\/p>\n
10.\tMr. S. Guru Krishna Kumar, learned counsel appearing on behalf of
\nthe respondent, on the other hand, would submit that it is not a case where
\nthis Court should exercise its discretionary jurisdiction under Article 136 of
\nthe Constitution of India.  It  was contended that clause 17(5) of the Certified
\nStanding Orders was clearly applicable and the conditions laid down therein
\nmust be considered before imposition of punishment keeping in view its
\ncumulative effect. The learned counsel would contend that clause 17(5) of
\nthe Certified Standing Orders is mandatory in character.  \tIt was also
\ncontended that admittedly past conduct of the respondent has not been
\nconsidered while imposing the punishment.   It was urged that  the conduct
\nof the respondent was otherwise  blemishless  otherwise.  Our attention, in
\nthis behalf, has been drawn to the fact that in terms of the order of the
\nLabour Court refusing to grant approval, the respondent was taken back in
\nservice in the year 1989 and since then he has been working in the bank
\nwithout any blemish whatsoever.  The learned counsel would submit that the
\norder of acquittal passed by the Criminal Court having been taken into
\nconsideration by the Division Bench, the same should be considered to be an
\nadditional factor apart from the factors contained in Clause 17(5) of the
\nCertified Standing Orders.\n<\/p>\n
11.\tClause 17(5)  of the Standing Orders of the Corporation reads as
\nunder :\n<\/p>\n
“In awarding the punishment under this standing order
\nthe employer shall take into account the gravity of the
\nmisconduct, the previous record of the workman and
\nany other extenuation or aggravating circumstances that
\nmay exist.”\n<\/p>\n
12.\tOn a plain reading of the said provision and particularly in view of the
\nfact that the word “shall” has been used,  prima facie it would be construed
\nto be imperative in character.  It may, however, be held to be directory in
\ncertain situation.  While construing a statute of this nature, the context plays
\nan important role.  Interpretation of a statute would also depend upon the
\nfact situation obtaining in the case.   There are, however, certain exceptions
\nto the said rule.   The question came up for consideration before this Court in
\nU.P. State Electricity Board v. Shiv Mohan Singh and Another<\/a> [(2004) 8
\nSCC 402] wherein it was,  inter-alia,  noticed :
\n“96. Ordinarily, although the word shall is considered to
\nbe imperative in nature but it has to be interpreted as
\ndirectory if the context or the intention otherwise
\ndemands. (See Sainik Motors v. State of Rajasthan, AIR<\/a>
\npara )\n<\/p>\n
97. It is important to note that in Crawford on Statutory
\nConstruction at p. 539, it is stated:\n<\/p>\n
271. Miscellaneous implied exceptions from the
\nrequirements of mandatory statutes, in
\ngeneral.Even where a statute is clearly mandatory
\nor prohibitory, yet, in many instances, the courts
\nwill regard certain conduct beyond the prohibition
\nof the statute through the use of various devices or
\nprinciples. Most, if not all of these devices find
\ntheir justification in considerations of justice. It is
\na well-known fact that often to enforce the law to
\nits letter produces manifest injustice, for frequently
\nequitable and humane considerations, and other
\nconsiderations of a closely related nature, would
\nseem to be of a sufficient calibre to excuse or
\njustify a technical violation of the law.\n<\/p>\n<\/p>\n
105. Only because the expression shall has been
\nemployed in sub-section (4) of Section 4, the same may
\nnot be held to be imperative in character having regard to
\nthe fact that not only, as noticed hereinbefore, a contract
\nof apprenticeship commences but also in view of the fact
\nthat an application for registration of apprenticeship
\ncontract is required to be made within a period of three
\nmonths in terms of Rule 4-B of the Apprenticeship Rules,
\n1992. The Act nowhere provides for the consequences of
\nnon-registration.\n<\/p>\n<\/p>\n
109. It is now a well-settled principle of law that if the
\nlanguage used in a statute is capable of bearing more than
\none construction, the true meaning thereof should be
\nselected having regard to the consequences resulting
\nfrom adopting the alternative constructions. A
\nconstruction resulting in hardship, non-fulfilment of the
\npurpose for which the statute has been brought in force
\nshould be rejected and should be given that construction
\nwhich avoids such results.”\n<\/p>\n
13.\tYet again in P.T. Rajan v. T.P.M. Sahir and Others<\/a> [(2003) 8 SCC
\n498], this Court observed :\n<\/p>\n
 “45. A statute as is well known must be read in the text
\nand context thereof. Whether a statute is directory or
\nmandatory would not be dependent on the user of the
\nwords shall or may. Such a question must be posed and
\nanswered having regard to the purpose and object it seeks
\nto achieve.\n<\/p>\n
46. What is mandatory is the requirement of sub-section
\n(3) of Section 23 of the 1950 Act and not the ministerial
\naction of actual publication of Form 16.\n<\/p>\n
47. The construction of a statute will depend on the
\npurport and object for which the same had been used. In
\nthe instant case the 1960 Rules do not fix any time for
\npublication of the electoral rolls. On the other hand
\nSection 23(3) of the 1950 Act categorically mandates that
\ndirection can be issued for revision in the electoral roll by
\nway of amendment in inclusion and deletion from the
\nelectoral roll till the date specified for filing nomination.
\nThe electoral roll as revised by reason of such directions
\ncan therefore be amended only thereafter. On the basis of
\ndirection issued by the competent authority in relation to
\nan application filed for inclusion of a voters name, a
\nnomination can be filed. The person concerned,
\ntherefore, would not be inconvenienced or in any way be
\nprejudiced only because the revised electoral roll in Form
\n16 is published a few hours later. The result of filing of
\nsuch nomination would become known to the parties
\nconcerned also after 3.00 p.m.\n<\/p>\n
48. Furthermore, even if the statute specifies a time for
\npublication of the electoral roll, the same by itself could
\nnot have been held to be mandatory. Such a provision
\nwould be directory in nature. It is a well-settled principle
\nof law that where a statutory functionary is asked to
\nperform a statutory duty within the time prescribed
\ntherefor, the same would be directory and not mandatory.
\n(See Shiveshwar Prasad Sinha v. District Magistrate of
\nMonghyr, Nomita Chowdhury v. State of W.B. and
\nGarbari Union Coop. Agricultural Credit Society Ltd. v.
\nSwapan Kumar Jana)<\/a>\n<\/p>\n
49. Furthermore, a provision in a statute which is
\nprocedural in nature although employs the word shall
\nmay not be held to be mandatory if thereby no prejudice
\nis caused. (See Raza Buland Sugar Co. Ltd. v. Municipal
\nBoard, Rampur, State Bank of Patiala<\/a> v. S.K. Sharma,
\nVenkataswamappa v. Special Dy. Commr. (Revenue) and
\nRai Vimal Krishna<\/a> v. State of Bihar.)”\n<\/p>\n
14.\tIn Ashok Lanka and Another v. Rishi Dixit and Others<\/a> [(2005) 5 SCC
\n598], it was held :\n<\/p>\n
“53. The question as to whether a statute is mandatory or
\ndirectory would depend upon the statutory scheme. It is
\nnow well known that use of the expression shall or may
\nby itself is not decisive. The court while construing a
\nstatute must consider all relevant factors including the
\npurpose and object the statute seeks to achieve. (See P.T.
\nRajan v. T.P.M. Sahir and U.P. SEB<\/a> v. Shiv Mohan
\nSingh.)”\n<\/p>\n
15.\tThere cannot also be any doubt that ordinarily consequences flowing
\nfrom contravention of an imperative character of a statute has to be given
\neffect to.   A statutory provision may be substantive or procedural.    If it is
\nsubstantive, the requirements laid down in the statute should ordinarily be
\ncomplied with. However, when the provisions contain a procedural matter,
\nsubstantial compliance thereof would serve the purpose.\n<\/p>\n
16.\tApplication of a statute or principle of law, however, may vary from
\ncase to case.\n<\/p>\n
17.\tOnly because the statute is imperative, it may not necessarily lead to a
\ndeclaration that the order impugned is a nullity.\n<\/p>\n
18.\t In State Bank of Patiala and Others v. S.K. Sharma<\/a> [(1996) 3 SCC
\n364], this Court has, inter alia,  laid down the law in the following terms :
\n“33. We may summarise the principles emerging from
\nthe above discussion. (These are by no means intended to
\nbe exhaustive and are evolved keeping in view the
\ncontext of disciplinary enquiries and orders of
\npunishment imposed by an employer upon the
\nemployee):\n<\/p>\n
\n (4)(a) In the case of a procedural provision which
\nis not of a mandatory character, the complaint of
\nviolation has to be examined from the standpoint
\nof substantial compliance. Be that as it may, the
\norder passed in violation of such a provision can
\nbe set aside only where such violation has
\noccasioned prejudice to the delinquent employee.\n<\/p>\n
(b) In the case of violation of a procedural
\nprovision, which is of a mandatory character, it has
\nto be ascertained whether the provision is
\nconceived in the interest of the person proceeded
\nagainst or in public interest. If it is found to be the
\nformer, then it must be seen whether the
\ndelinquent officer has waived the said requirement,
\neither expressly or by his conduct. If he is found to
\nhave waived it, then the order of punishment
\ncannot be set aside on the ground of the said
\nviolation. If, on the other hand, it is found that the
\ndelinquent officer\/employee has not waived it or
\nthat the provision could not be waived by him,
\nthen the Court or Tribunal should make
\nappropriate directions (include the setting aside of
\nthe order of punishment), keeping in mind the
\napproach adopted by the Constitution Bench in B.
\nKarunakar18. The ultimate test is always the
\nsame, viz., test of prejudice or the test of fair
\nhearing, as it may be called.”\n<\/p>\n
19.\tOrdinarily,  although sub-clause (5) of Clause (17) of the Certified
\nStanding Orders is required to be complied with, the same, in our opinion,
\nwould not mean that in a given situation, there cannot be any deviation
\ntherefrom.   In a case where dismissal or removal of service is to be
\nordinarily followed, e.g. in a case of grave misconduct like
\nmisappropriation, strict enforcement of the rule may not be insisted upon.
\nWhen, we say so, we are not oblivious of the law that an executive agency is
\nordinarily bound by the standard by which it professes its actions to be
\njudged.  [See Harjit Singh & Another v. The State of Punjab & Another<\/a>
\n[2007) (3) SCALE 553]. But where a procedural provision merely embodied
\nthe principles of natural justice, in view of the decision of this Court in State
\nBank of Patiala (supra), the question  as to whether the principle has been
\nfollowed or not, will depend upon the fact situation obtaining in each case.
\n[See Ashok Kumar Sonkar v. Union of India & Others<\/a>  [2007 (3) SCALE
\n517].\n<\/p>\n
20.\tIt will be useful to note that in State of Punjab and Others v.
\nSukhwinder Singh<\/a> [(1999) SCC (L&S) 1234], this Court has held that the
\nwords “gravest act of misconduct” occurring in Rule 16.2(1) of the Punjab
\nPolice Rules need not be used in the order of punishment,  as it can be found
\nout from the factual matrix obtaining in each case.\n<\/p>\n
21.\tHowever, there is another aspect of the matter which cannot be lost
\nsight of.  Respondent, in the meanwhile, has been acquitted.  The factum of
\nhis acquittal has been taken into consideration by the Division Bench, which
\nwas  considered to be an additional factor.  Ordinarily,  the question as to
\nwhether acquittal in a criminal case will be conclusive in regard to the order
\nof punishment imposed upon the delinquent officer in a departmental
\nproceeding is a matter which will again depend upon the fact situation
\ninvolved in a given case.\n<\/p>\n
22.\tThere are evidently two lines of decisions of this Court operating in
\nthe field. One being the cases which would come within the purview of
\nCapt. Paul Anthony v. Bharat Gold Mines Ltd. and Another<\/a> [(1999) 3 SCC
\n679] and G.M. Tank v. State of Gujarat and Others<\/a>  [(2006) 5 SCC 446].
\nHowever, the second line of decisions show that an honourable acquittal in
\nthe criminal case itself may not be held to be determinative in respect of
\norder of punishment meted out to the delinquent officer, inter alia,  when :\n<\/p>\n
(i) the order of acquittal has not been passed on the same set of fact or same
\nset of evidence; (ii) the effect of difference in the standard of proof in a
\ncriminal trial and disciplinary proceeding has not been considered. [See
\nCommissioner of Police, New Delhi  v. Narender Singh<\/a>  (2006) 4 SCC 265],
\nor;  where the delinquent officer was charged with something more than the
\nsubject-matter of the criminal case and\/or covered by a decision of the Civil
\nCourt.  [See G.M. Tank (supra), Jasbir Singh v. Punjab & Sind Bank and
\nOthers<\/a>  – 2006 (11) SCALE 204, and Noida Enterprises Assn. v. Noida &
\nOthers<\/a>  – 2007 (2) SCALE 131  Para 18] <\/p>\n
23.\tIn Narinder Mohan Arya v. United India Insurance Co. Ltd. and
\nOthers<\/a> [(2006) 4 SCC 713], this Court held :\n<\/p>\n
“39.  Under certain circumstances, a decision of a civil
\ncourt is also binding upon the criminal court although,
\nconverse is not true.   (See Karam Chand Ganga Prasad
\nv. Union of India).   However,<\/a> it is also true that the
\nstandard of proof in a criminal case and civil case is
\ndifferent.\n<\/p>\n
40.   We may notice that in Capt. M. Paul Anthony v.
\nBharat Gold Mines Ltd.,<\/a> this Court observed: (SCC p.
\n695, para 35)<\/p>\n
\t“35.   Since the facts and the evidence in
\nboth the proceedings, namely, the departmental
\nproceedings and the criminal case wee the same
\nwithout there being any iota of difference, the
\ndistinction, which is usually drawn as between the
\ndepartmental proceedings and the criminal case on
\nthe basis of approach and burden of proof, would
\nnot be applicable to the instance case.”\n<\/p>\n
41.\tWe may not be understood to have laid down a law
\nthat in all such circumstances the decision of the civil
\ncourt or the criminal court would be binding on the
\ndisciplinary authorities as this Court in large number of
\ndecisions points out that the same would depend upon
\nother factors as well. See e.g. Krishnakali Tea Estate v.
\nAkhil Bharatiya Chah Mazdoor Sangh and Manager,
\nReserve<\/a> bank of India v. S. Mani.   Each case is,
\ntherefore, required to be considered on its own facts.\n<\/p>\n
24.\tIn Delhi Cloth and General Mills Co. v. Ganesh Dutt and Others
\n[(1972)  4 SCC 834], this Court stated :\n<\/p>\n
“31.  Mr. Sharma referred us to Paragraph 40 of the
\nCertified Standing Orders of the appellant Company Ex.
\nM-4 to the effect that in the order deciding to dismiss the
\nworkman, the appellant Company has not taken into
\naccount, as it is bound to, the previous record, if any, of
\nthe workmen.   This contention cannot be accepted
\nbecause in the order dated May 9, 1966, communicated
\nto each of the workmen, in the penultimate paragraph it
\nhas been stated that while arriving at the decision to
\ndismiss the employees from the service for misconduct,
\nall relevant circumstances including the past record of
\nservice, have been fully taken into consideration.   So far
\nas we could see, no challenge has been made by the
\nworkmen that the appellant has not taken into account his
\npast record.”\n<\/p>\n
25.\tWe are, however,  of the opinion that it is not a fit case where this
\nCourt should exercise its extra extra-ordinary jurisdiction under Article 136
\nof the Constitution of India.  Respondent has been taken back in service in
\nthe year 1989.  The occurrence took  place  in the year 1985.    The
\napplication under Section 33(2)(b) of the Act was filed on 16.06.1986.   It
\nwas rejected by an order dated 19.4.1989.  Respondent, thereafter, was taken
\nback  in service. Despite the fact that the Writ Petition filed by the appellant
\nwas allowed on 08.10.1999, by reason of an interim order of stay granted by
\nthe Division Bench, he continued in his service.  By reason of the impugned
\njudgment, the Division Bench, as noticed hereinbefore, set aside the
\njudgment of the learned Single Judge.  Respondent is merely a class IV
\nemployee, it does not hold any office of confidence.   He was not charged
\nwith an offence of criminal breach of trust.\n<\/p>\n
26.\tThus, it is now well-settled principle of law that this Court shall not
\nexercise its jurisdiction under Article 136 of the Constitution of India, only
\nbecause it may be lawful to do so. [See Transmission Corporation of A.P.
\nLtd. v. Lanco Kondapalli Power (P) Ltd.<\/a> (2006) 5 SCC 540] and Chandra
\nSingh and Others v. State of Rajasthan and Another [(2003) 6 SCC 545].\n<\/p>\n
27.\tFor the reasons aforementioned, the appeal is dismissed.  However, in
\nthe facts and circumstances of the case, there shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Management, Pandiyan Roadways … vs N. Balakrishnan on 15 May, 2007 Author: S.B. Sinha Bench: S.B. Sinha, Markandey Katju 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-127038","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nManagement, Pandiyan Roadways ... vs N. 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