{"id":251389,"date":"2005-09-19T00:00:00","date_gmt":"2005-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajit-kumar-nag-vs-g-m-p-j-indian-oil-on-19-september-2005"},"modified":"2018-01-20T19:12:57","modified_gmt":"2018-01-20T13:42:57","slug":"ajit-kumar-nag-vs-g-m-p-j-indian-oil-on-19-september-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajit-kumar-nag-vs-g-m-p-j-indian-oil-on-19-september-2005","title":{"rendered":"Ajit Kumar Nag vs G.M.(P.J.)Indian Oil … on 19 September, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ajit Kumar Nag vs G.M.(P.J.)Indian Oil … on 19 September, 2005<\/div>\n
Author: H C Thakker<\/div>\n
Bench: S.N. Variava, C.K. Thakker, Tarun Chatterjee<\/div>\n
           CASE NO.:\nAppeal (civil)  4544 of 2005\n\nPETITIONER:\nAjit Kumar Nag\t\t\t\t\t\t\n\nRESPONDENT:\nG.M.(P.J.)Indian Oil Corporation. Ltd. Haldia & Ors.\t\n\nDATE OF JUDGMENT: 19\/09\/2005\n\nBENCH:\nS.N. VARIAVA,C.K. THAKKER & TARUN CHATTERJEE\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nWITH<\/p>\n
WRIT PETITION (CIVIL) NO. 703 OF 2004<\/p>\n
Hon. C.K. Thakker, J.\n<\/p>\n
\tCivil Appeal No. 4544 of 2005 is directed against the judgment and
\norder passed by the Division Bench of the High Court of Calcutta on
\nFebruary 6, 2004 in FMA No. 3093 of 2002 confirming the judgment and
\norder passed by the learned single Judge on July 9, 2002 in Writ Petition
\nNo. 10667 (W) of 1999.\n<\/p>\n
\tWrit Petition No. 703 of 2004 is instituted by the petitioner in this
\nCourt under Article 32<\/a> of the Constitution challenging the validity of
\nClause (vi) of Standing Order 20 of the Certified Standing Orders of the
\nIndian Oil Corporation Ltd.-respondent herein being arbitrary and against
\nthe principles of natural justice.\n<\/p>\n
\tTo appreciate the controversy raised in the matters, relevant facts
\nmay be stated in brief.\n<\/p>\n
\t  The appellant in Civil Appeal No. 4544 of 2005 (petitioner in
\nWrit Petition No. 703 of 2004) joined the service of Indian Oil
\nCorporation (‘Corporation’ for short) at Haldia Refinery in 1973.  He was
\na senior officer of the Corporation. He asserted that all throughout his
\nservice record was good and satisfactory.  He was sincere and efficient
\nand has worked with dedication.  At several occasions, he received
\nappreciation for his work.  There was no grievance or complaint by the
\nauthorities and he continued to be a ‘devoted employee’ of the
\nCorporation.  It was, no doubt, stated that in 1987, a charge sheet was
\nissued against him but according to the appellant, subsequently, the
\nCorporation was satisfied on the explanation submitted by the appellant
\nthat there was no substance in the allegations and the same was,
\ntherefore, withdrawn..  On 11th March, 1988, the appellant was promoted
\nas Operator ‘A’ Special Grade.  It is the case of the appellant that his next
\ndoor neighbour was one Mrs. Parul Jana, who was Sister-in-Charge in the
\nRefinery Hospital at Haldia.  Parul Jana was treating the appellant as her
\nbrother.  The relationship between both the families was close and cordial
\nand whenever necessary, Parul Jana used to call the appellant as one of
\nher family members.  Parul Jana suddenly developed heart problem in
\nMay, 1999.  She was, therefore, required to be admitted for treatment in
\nApollo Hospital, Madras.  At late night hours on 5th May, 1999, two sons
\nof Parul Jana rushed to the appellant in grave anxiety and informed him
\nthat they failed to get positive information about their mother and they
\nwere extremely worried.  They, therefore, requested the appellant to
\nextend his helping hand to get proper information about the health of
\ntheir mother.  The appellant advised them to go to the Refinery Hospital.
\nSince the Refinery Hospital, Haldia had referred the case of Parul Jana to
\nApollo Hospital, Madras, they would be able to get information from
\nHaldia Hospital.   Sons of Parul Jana requested the appellant to
\naccompany them to the hospital.  The appellant being an employee and
\nwell-known for his work in the hospital, could not refuse the reasonable
\nrequest of two persons and accordingly accompanied them. On reaching
\nthe hospital, they found the office of the Chief Medical Officer, Dr.
\nBhattacharya, open and he was also available.  According to the
\nappellant, two sons of Parul Jana approached Dr. Bhattacharya and
\nrequested him to give information about their mother who was ailing and
\nadmitted to Apollo Hospital, Madras.  Dr. Bhattacharya said nothing in
\nspite of repeated requests by sons of Parul Jana.  On the contrary, Dr.
\nBhattacharya without any reason, flared up and told them that he was not
\nsupposed to provide information about Parul Jana to anyone and
\neveryone.  When sons of Parul Jana insisted to have information from Dr.
\nBhattacharya, the latter told them that they should not worry about their
\nmother and in the event of her death, the Corporation would arrange  to
\nbring the dead body from Apollo Hospital, Madras  to Haldia and the
\nbody would be handed over to the sons.  According to the appellant, he
\ncontinued to be a silent spectator all throughout.  Sons of Parul Jana were
\nseriously shocked and disturbed on such statement being made and they
\nraised objection against the behaviour of Dr. Bhattacharya.  Dr.
\nBhattacharya called several persons in the hospital and directed them to
\nthrow all persons including the appellant out of the hospital premises.
\nSons of Parul Jana could not control themselves.  The appellant was also
\nnot spared.  Being a heart patient and already had undergone heart
\nsurgery, he was very much upset as outsiders brought by Dr.
\nBhattacharya started pushing and dragging the persons including the
\nappellant and sons of Parul Jana out of the hospital.  The appellant was
\nbewildered and motionless for some time.  The appellant apprehended
\nthat Dr. Bhattacharya would create a situation which may adversely
\naffect appellant’s health.  There was heated exchange of words which
\nresulted in commotion.  There was scuffle on the arrival of outsiders and
\ntwo sons of Parul Jana out of hospital premises.  The appellant
\nimmediately contacted the General Manager (Projects) and requested him
\nto help to control the situation.  When the General Manager reached the
\nhospital, the appellant explained the situation to him.  The General
\nManager also met Dr. Bhattacharya to get true and correct facts as to how
\nthe incident had happened.  The General Manager then advised the
\nappellant to go back.  Immediately, the appellant left the hospital.  In the
\nentire incident, asserted the appellant, save and except accompanying
\nsons of Parul Jana, he did nothing.  He was not involved in the incident in
\nany manner whatsoever.  It was the Chief Medical Officer, who alone
\nwas responsible for the entire unfortunate situation.  He also inflicted
\ninjuries on two sons of Parul Jana.  Dr. Bhattacharya, however, cooked
\nup a false case against the appellant alleging that the appellant had
\nassaulted and injured him.  On 6th May, 1999, i.e. on the next day, the
\nChief Medical Officer, Dr. Bhattacharya reported to the management that
\nat the late night hours of 5th May, 1999, the appellant led by a bunch of
\nhooligans had visited the hospital, assaulted him, i.e. Dr. Bhattacharya
\nand abused and threatened other officers.  On the basis of the said
\ncomplaint, on the same day, i.e., on 6th May, 1999, the General Manager
\nof the Corporation dismissed the appellant for allegedly assaulting the
\nChief Medical Officer.  No notice was issued, no explanation was sought,
\nno charge sheet was filed, no disciplinary enquiry was instituted and no
\nopportunity of hearing was afforded to the appellant.  It was stated that in
\nthe interest of security of Refinery, the General Manager had to take firm
\naction immediately.  Criminal proceedings were also initiated and a
\ncriminal case was filed against the appellant for offences punishable
\nunder Sections 147<\/a>, 149<\/a>, 341<\/a>, 323<\/a> and 506<\/a> of the Indian Penal Code.
\nThe General Secretary of Haldia Refinery Employees’ Union objected to
\nunlawful and arbitrary dismissal of the appellant and wrote a letter to the
\nCorporation requesting it to reinstate the appellant.  No positive action,
\nhowever, was taken by the Corporation.  In the circumstances, the
\nappellant was constrained to approach the High Court of Calcutta by
\nfiling a Writ Petition on May 12, 1999.  On May 13, 1999, the learned
\nsingle Judge, in view of the urgency of the matter, dispensed with the
\nrequirement of Writ Rules, took up the matter for admission-hearing and
\ndirected the appellant to serve copies of the writ petition alongwith
\nannexures upon all respondents within a week and to file affidavit of
\nservice on the next returnable date which was fixed as 28th June, 1999.
\nEx parte ad-interim relief was also granted till June 30, 1999.  Being
\naggrieved by the order passed by the learned single Judge granting ex
\nparte ad-interim relief, the Corporation approached the Division Bench
\nand the Division Bench by an order dated June 22, 1999 set aside the
\norder passed by the learned single Judge.  According to the Division
\nBench, in the facts and circumstances of the case, it was not proper for
\nthe learned single Judge to have passed ex parte ad-interim order.  The
\nappeal was accordingly disposed of.   So far as criminal case is
\nconcerned, the learned Judicial Magistrate before whom the case was
\nplaced for hearing disposed it of on 5th April, 2002 and the appellant was
\nacquitted.  The Writ Petition came up for hearing before the learned
\nsingle Judge who dismissed it on July 9, 2002.  The appellant preferred
\nan appeal before the Division Bench against the order passed by the
\nlearned single Judge which, as stated above, came to be dismissed by the
\nDivision Bench.  Against the said order, the appellant had approached
\nthis Court by filing Special Leave Petition on May 17, 2004.\n<\/p>\n
\tWhen the matter was placed for admission on July 27, 2004, notice
\nwas issued by this Court.  On July 25, 2005, it was placed before a two
\nJudge Bench.  Leave was granted and the Court passed the following
\norder:\n<\/p>\n
“Delay condoned.\n<\/p>\n
Leave granted.\n<\/p>\n
\tIn view of the fact that there are conflicting
\ndecisions in the case of Workmen of Hindustan Steel Ltd.
\nvs. Hindustan Steel Ltd. & Ors<\/a>.  reported in 1984 (Suppl.)
\nSCC 554 and in the case Haripada Khan vs. Union of
\nIndia & Ors.  reported in 1996(1) SCC 536 it will be
\nappropriate that this matter be considered by a larger
\nBench.  Papers be placed before Hon’ble the Chief Justice
\nfor necessary orders.”\n<\/p>\n
\tIt may be stated at this stage that on November 20, 2004, the
\nappellant herein instituted a substantive petition under Article 32<\/a> of the
\nConstitution and challenged the validity and vires of Clause (vi) of
\nStanding Order 20 of the Certified Standing Orders of the Indian Oil
\nCorporation since he had not challenged the validity of the Standing
\nOrders before the High Court of Calcutta.  On January 20, 2005, notice
\nwas issued and the Writ Petition was ordered to be tagged with S.L.P.(C)
\nNo. 21248 of 2004 (Civil Appeal NO. 4544 of 2005). That is how, both
\nthe matters have been placed before us.\n<\/p>\n
\t  We have heard the learned counsel for the parties.\n<\/p>\n
\t  Mr. P.P. Rao, learned Senior Advocate, appearing on behalf of the
\nappellant contended that the respondent-Corporation is ‘State’ within the
\nmeaning of Article 12<\/a> of the Constitution and every action of the
\nCorporation, therefore, must be in conformity with the fundamental rights
\nguaranteed by Part III of the Constitution.  According to him, Standing
\nOrder 20, and in particular Clause (vi) thereof, is arbitrary, irrational and
\nultra vires Article 14<\/a> of the Constitution inasmuch as it empowers and
\nauthorizes the General Manager of the Corporation to dismiss an employee
\nwithout following the rule of audi alteram partem and without observing
\nthe principles of natural justice.  Such a rule, submitted Mr. Rao, violates
\nthe fundamental principles of justice and infringes Article 14.<\/a>  A similar
\nprovision in the nature of second proviso to Article 311 (2)<\/a> of the
\nConstitution have been interpreted in several cases by this Court and it has
\nbeen held that save and except grave situations, no employee can be
\ndismissed or removed from service without observing the rules of natural
\njustice.  Such provisions have also been held to be bad and against public
\npolicy under Section 23<\/a> of the Contract Act, 1872.  Even if there is a term
\nin the contract or in a Rule, it is liable to be struck down as arbitrary and
\nultra vires Article 14<\/a> as also Article 311 (2)<\/a> of the Constitution.  The
\ncounsel also submitted that the learned single Judge as well as the Division
\nBench were wrong in not relying upon the decisions cited at the Bar and in
\nmechanically and blindly applying Clause (vi) of the Standing Order 20.\n<\/p>\n
\t Even on merits, the appellant could not be held liable.  He had
\nmerely accompanied the two sons of Parul Jana to the hospital.  The
\nunfortunate incident was the result of the behaviour of the Chief Medical
\nOfficer for which, he alone was responsible and the appellant could not be
\npunished for the misdeeds of Dr. Bhattacharya.  It was further submitted
\nby Mr. Rao that this is a fit case in which necessary guidelines are required
\nto be issued by this Court so that blanket and uncanalised power under the
\nsaid provision may not be misused by the General Manager.  It was also
\nsubmitted that when the criminal case was registered against the appellant
\nand he was acquitted of the charges leveled against him, it was incumbent
\non the Corporation to reinstate him in service with full back wages.
\nFinally, it was submitted that the appellant has reached the age of
\nsuperannuation.  The question of reinstatement is thus academic.  It was,
\ntherefore, prayed that keeping in view the totality of facts, the order passed
\nby the General Manager may be quashed and set aside by directing the
\nrespondent to extend monetary benefits to the appellant.\n<\/p>\n
\tThe learned counsel for the respondent-Corporation, on the other
\nhand, supported the order.  It was stated that the appellant cannot be said
\nto be an employee holding “civil post” under Part XIV of the Constitution
\nand, as such, he cannot claim protection of Article 311.<\/a>  He is governed by
\nthe Rules, Regulations and Standing Orders of the Corporation.  The
\nCorporation is governed by the Certified Standing Orders.  Clause (iii) of
\nStanding Order 20 provides for disciplinary enquiry against an employee
\nof the Corporation and taking of appropriate action on the basis of such
\nenquiry.  Clause (vi) of Standing Order 20, however, deals with special
\nprocedure in certain cases and empowers the General Manager to dismiss
\nor remove a workman in certain circumstances.  In bona fide exercise of
\nthe said power, the General Manager passed an order on 6th May, 1999 and
\ndismissed the appellant from service.  The order is a speaking order
\nrecording reasons as to what compelled the General Manager to treat the
\ncase as exceptional in nature and the General Manager was constrained to
\nexercise his power under the said provision.  It was also submitted that
\nfrom the order, it is clear that the appellant misbehaved with the staff of
\nthe hospital and assaulted the Chief Medical Officer and caused injuries.
\nTo ensure maintenance of discipline and taking into account several
\nstatements, the General Manager had taken the impugned action.  Such an
\naction cannot be said to be arbitrary, irrational or abuse of power.  The
\ncounsel submitted that acquittal by a criminal court is hardly a relevant
\nfactor so far as exercise of power by the General Manager is concerned.
\nStanding Order 20 (vi) relates to special procedure in cases of exceptional
\nnature.  Such a provision cannot be said to be ultra vires Article 14<\/a> of the
\nConstitution.  As far as Article 311<\/a> is concerned, it does not apply to
\nemployees of the Corporation and hence, it cannot be invoked or pressed
\ninto service by the appellant.  It was further submitted that the appellant
\nhad challenged the order of dismissal by filing a petition but he did not
\nchallenge the validity or vires of Clause (vi) of Standing Order 20 before
\nthe learned single Judge or before the Division Bench and argued the
\nmatter on merits and the case was decided against him.  He, therefore, now
\ncannot be permitted to challenge the validity of Clause (vi) of Standing
\nOrder 20 before this Court as such challenge would be barred by res
\njudicata or by constructive res judicata.  It was also submitted that the
\norder passed by the General Manager is subject to appeal under Standing
\nOrder 21 of the Standing Orders and the appellant had exercised the said
\nright by filing an appeal.  The Appellate Authority considered the relevant
\nprovisions of Standing Orders as also the order dated 6th May, 1999 passed
\nby the General Manager and having applied its mind to the facts and
\ncircumstances, dismissed the appeal observing that there was no ground to
\ninterfere with the punishment imposed on the appellant.  It was, therefore,
\nsubmitted that no case has been made out by the appellant and the appeal
\ndeserves to be dismissed.  Since the appellant had not challenged the
\nvalidity of Clause (vi) of Stranding Order 20 before the High Court, his
\npetition is not maintainable and may also be dismissed.\n<\/p>\n
\tHaving heard the learned counsel for the parties, we are of the view
\nthat the appeal as well as the writ petition deserve to be dismissed.  So far
\nas preliminary objection as to maintainability of the petition in this Court
\nand the applicability of res judicata in the appeal is concerned, it is true
\nthat the appellant had not taken the ground as to vires of Clause (vi) of
\nStanding Order 20 either before the learned single Judge or before the
\nDivision Bench of the High Court.  At the same time, however, when he
\nhas approached this Court against the decision of the High Court and has
\nraised this ground, it would not be appropriate to preclude him from
\narguing the case on the vires or validity of Clause (vi) of the Standing
\nOrder 20.  Moreover, he has also filed a substantive petition for the said
\npurpose under Article 32<\/a> of the Constitution.  The preliminary objection,
\ntherefore, does not impress us and we have allowed both the parties to
\nargue the case on vires of Standing Order 20(vi) as well as on merits.\n<\/p>\n
\tAs far as acquittal of the appellant by a criminal court is concerned,
\nin our opinion, the said order does not preclude the Corporation from
\ntaking an action if it is otherwise permissible.  In our judgment, the law is
\nfairly well settled.  Acquittal by a criminal court would not debar an
\nemployer from exercising power in accordance with Rules and
\nRegulations in force.  The two proceedings  criminal and departmental
\nare entirely different.  They operate in different fields and have different
\nobjectives.  Whereas the object of criminal trial is to inflict appropriate
\npunishment on offender, the purpose of enquiry proceedings is to deal with
\nthe delinquent departmentally and to impose penalty in accordance with
\nservice Rules.  In a criminal trial, incriminating statement made by the
\naccused in certain circumstances or before certain officers is totally
\ninadmissible in evidence.  Such strict rules of evidence and procedure
\nwould not apply to departmental proceedings.  The degree of proof which
\nis necessary to order a conviction is different from the degree of proof
\nnecessary to record the commission of delinquency.  The rule relating to
\nappreciation of evidence in the two proceedings is also not similar.  In
\ncriminal law, burden of proof is on the prosecution and unless the
\nprosecution is able to prove the guilt of the accused ‘beyond reasonable
\ndoubt’, he cannot be convicted by a court of law.  In departmental enquiry,
\non the other hand, penalty can be imposed on the delinquent officer on a
\nfinding recorded on the basis of ‘preponderance of probability’.  Acquittal
\nof the appellant by a Judicial Magistrate, therefore, does not ipso facto
\nabsolve him from the liability under the disciplinary jurisdiction of the
\nCorporation.  We are, therefore, unable to uphold the contention of the
\nappellant that since he was acquitted by a criminal court, the impugned
\norder dismissing him from service deserves to be quashed and set aside.\n<\/p>\n
\tAs far as the status of the appellant is concerned, it must be stated
\nthat Mr. Rao, Senior Advocate fairly conceded at the hearing of the appeal
\nand the writ petition that the appellant is not governed by Article 311<\/a> of
\nthe Constitution since he cannot be said to be ‘civil servant’.  In this
\nconnection, it will be profitable to refer to a decision of the Constitution
\nBench of this Court in Dr. S. L. Agarwal vs. General Manager, Hindustan
\nSteel Limited (Hindustan Steel Limited I<\/a>); (1970) 3 SCR 363 ; (1970) 1
\nSCC 177.  In that case, A was appointed as Assistant Surgeon by the Board
\nof Directors of the Corporation for one year.  After completion of the
\nprobation period, he was employed on contract basis and his services were
\nterminated in accordance with the terms of the contract.  He filed a writ
\npetition in the High Court contending that his services were wrongly
\nterminated which was violative of Article 311<\/a> of the Constitution.  The
\nCorporation contended that Article 311<\/a> was not applicable to him as he
\nwas employed by the Corporation and he neither belonged to Civil Service
\nof the Union nor held a civil post under the Union.\n<\/p>\n
\tUpholding the objection and considering the ambit and scope of
\nArticle 311<\/a>, this Court held that an employee of a Corporation cannot be
\nsaid to have held a ‘civil post’ and, therefore, not entitled to protection of
\nArticle 311.<\/a>  According to the Court, the Corporation could not be said to
\nbe a ‘department of the Government’ and employees of such Corporation
\nwere not employees under the Union.  The Corporation has an independent
\nexistence and the appellant was not entitled to invoke Article 311.<\/a>
\nHindustan Steel Limited (I) has been followed by this Court in several
\ncases.  [See Sukhdev Singh & Others v. Bhagatram Sardar Singh
\nRaghuvanshi & Another<\/a>, (1975) 1 SCC 421 ; Som Prakash Rekhi v. Union
\nof India<\/a>, (1981) 1 SCC 449 ; A.L. Kalra v. Project & Equipment
\nCorporation of India Ltd<\/a>., (1984) 3 SCC 316 ; Tekraj Vasandi v. Union of
\nIndia & Others<\/a>, (1988) 1 SCC 236 ; Pyare Lal Sharma v. Managing
\nDirector & Others<\/a>, (1989) 3 SCC 448 ; State Bank of India v. S. Vijay
\nKumar<\/a>, (1990) 4 SCC 481 ; Satinder Singh Arora v. State Bank of Patiala,
\n(1992) Supp 2 SCC 224]<\/p>\n
\tIn view of the above pronouncements of this Court, there is no doubt
\nthat the respondent-Corporation is right in submitting that the appellant
\ncannot invoke Article 311<\/a> by describing him as holding ‘civil post’ under
\nthe Union or a State.  Article 311<\/a> of the Constitution, therefore, has no
\napplication to the facts of the case.\n<\/p>\n
\tMr. Rao, however, placed strong reliance on a decision of two Judge
\nBench of this Court in Workmen of Hindustan Steel Limited & Another vs.
\nHindustan Steel Limited & Others, (Hindustan Steel II<\/a>); (1984) Supp SCC\n<\/p>\n
554.  In that case, the employer dismissed a workman without holding
\nenquiry and without giving him an opportunity of being heard.   The
\npower was exercised under Standing Order 32 of the Certified Standing
\nOrders of Corporation.\n<\/p>\n
\t  Standing Order 32 read thus :\n<\/p>\n
“32.\tSpecial Procedure in certain cases.- Where
\nworkman has been convicted for a criminal offence in a
\ncourt of law or where the General Manager is satisfied,
\nfor reasons to be recorded in writing, that it is
\ninexpedient or against the interests of security to
\ncontinue to employ the workman, the workman may be
\nremoved or dismissed from service without following
\nthe procedure laid down in Standing Order 31.”\n<\/p>\n
\tThe language of Standing Order 32 is ‘more or less’ similar to
\nStanding Order 20 (vi) of the Certified Standing Orders of the respondent-
\nCorporation which reads as under;\n<\/p>\n
“Where a workman has been convicted for a  criminal
\noffence in a Court of Law or where the General
\nManager is satisfied for reasons to be recorded in
\nwriting, that it is neither expedient nor in the interest of
\nsecurity to continue the workman, the workman may be
\nremoved or dismissed from service without following
\nthe procedure laid down under III of this Clause.”\n<\/p>\n
\tThe workman challenged the action inter alia on the ground that
\nprovision of Standing Order 32 is irrational, arbitrary and violative of
\nArticle 311.<\/a>  The Court proceeded to consider the objection against
\nStanding Order 32 on the touchstone of Article 311.<\/a>  Describing the
\nprovision as ‘archaic standing order reminiscent of the days of hire and
\nfire’ relied upon by a public sector undertaking to sustain an utterly
\nunsustainable order and to justify an action taken in violation of the
\nprinciples of natural justice, the Court stated that such a provision could
\nnot stand.  Reproducing Article 311<\/a> of the Constitution, the Court held that
\nthe minimum requirement of observance of principle of natural justice
\ncould not be dispensed with and the action taken by the Corporation was
\nillegal and unlawful.  The Court, therefore, directed the Corporation to
\n‘recall and cancel the order’ by reinstating the workman.  The Corporation
\nwas granted an opportunity to recast its Standing Order 32 to be brought in
\nconformity with the second proviso to Article 311(2)<\/a> of the Constitution.\n<\/p>\n
\tThe endeavour of Mr. Rao before us is that the above case was a
\ncase of termination of service of an employee of the Corporation.  The
\nStanding Order which came up for consideration in that case was ‘more or
\nless’ similar to the Standing Order with which we are concerned.  In spite
\nof the fact that the employee was engaged by the Corporation, the Court
\nconsidered the provisions of Article 311<\/a> of the Constitution and the
\nprinciples applicable to civil servants.  It was, therefore, submitted that in
\nthe present case also, the ratio laid down in that case may be applied and
\nthe impugned order passed by the Corporation may be set aside.\n<\/p>\n
\tWe are unable to agree with Mr. Rao.  It is no doubt true that the
\nprovision which came up for consideration before a two Judge Bench in
\nHindustan Steel Limited (II) was against an order passed by the
\nCorporation.  It was similar to Clause (vi) of Standing Order 20 which this
\nCourt is called upon to consider.  At the same time, however, it cannot be
\noverlooked that two Judge Bench proceeded to consider the validity of the
\nprovision on the anvil of Article 311<\/a> which could not be attracted as it was
\nnot applicable.  The point was settled and finally decided by the
\nConstitution Bench of this Court in Hindustan Steel Limited (I).
\nUnfortunately, however, the attention of the Court was not invited to the
\nsaid case and in Hindustan Steel Limited (II), the Court proceeded as if the
\nemployees of the Corporation were governed by Article 311.<\/a>  Hindustan
\nSteel Limited (II) is thus per incuriam.  It could not have applied Article
\n311<\/a> had the attention of the two Judge Bench been drawn to the decision
\nof the Constitution Bench in Hindustan Steel Limited (I).\n<\/p>\n
\tAt the time of admission hearing, reference was also made to
\nanother two Judge Bench decision of this Court in Hari Pada Khan vs.
\nUnion of India & Others<\/a>, (1996) 1 SCC 536.   In that case, the petitioner
\nwho was a permanent staff member of Indian Oil Corporation was
\ninvolved in theft of oil and a First Information Report was lodged against
\nhim.  On the basis of that report, a criminal case was registered and he was
\narrested.  Relying on Standing Order 20 (iv) of the Corporation, he was
\ndismissed from service.  Standing Order 20(iv), as then stood, was similar
\nto present Standing Order 20(vi) and empowered the General Manager of
\nthe Corporation to dismiss a workman if he had been convicted for a
\ncriminal offence in a court of law or if the General Manager was satisfied
\nfor reasons to be recorded in writing that it was neither expedient nor in
\nthe interest of the Corporation to continue the workman in service.
\n\tStanding Order 20(iv) read thus;\n<\/p>\n
“Where a workman has been convicted for a criminal
\noffence in a Court of Law or where the General
\nManager is satisfied for reasons to be recorded in
\nwriting, that there is neither expedient nor in the
\ninterest of security to continue the workman, the
\nworkman may be removed or dismissed from service
\nwithout following the procedure laid down under III of
\nthis clause.”\n<\/p>\n
\tThe action of the Corporation was challenged by the dismissed
\nemployee.  Upholding the order of the Corporation, this Court held that the
\naction could be taken.  The Court stated that the rule had been made by the
\nCorporation with the intention to prevent an employee of the Corporation
\nserved with a charge sheet and arrest in furtherance thereof from
\ncontinuing in service.\n<\/p>\n
  \tMr. Rao, however, placed reliance on the following observations :
\n“Of course it would be subject to the result of the trial.
\nContinuance of the officer involved in an offence would
\nbe an affront to good and disciplined conduct of
\nworkmen.  His continuance in service of the
\nCorporation would demoralize the service.  Therefore, it
\nwas most expedient in the public interest not to hold any
\nfurther enquiry and terminate his services forthwith.
\nHowever, it would be subject to the result of the trial.”\n<\/p>\n
\tThe endeavour of Mr. Rao is that this Court had expressly stated in
\nHari Pada Khan that an order of dismissal from service would be subject
\nto result of the trial.  In the present case, a criminal case was registered
\nagainst the appellant and he was prosecuted.  The prosecution, however,
\nresulted in acquittal of the appellant.  As per the ratio in Hari Pada Khan,
\nsubmitted Mr. Rao, the appellant is entitled to reinstatement.\n<\/p>\n
\tWe are unable to accept the contention.  It is true that in Hari Pada
\nKhan, this Court upheld the order of dismissal by expressly observing
\nthat it would be subject to result of trial but what Mr. Rao forgets is that
\nin Hari Pada Khan,   the power was exercised by the General Manager
\nnot under the second part of the Standing Order 20 (iv), but on the first
\npart thereof, which covered cases of conviction of a workman for a
\ncriminal offence.  The second part dealt with satisfaction of the General
\nManager about expediency of not keeping a workman in service.  Since
\nthe power was exercised by the General Manager on the first part and the
\nbasis was registration of a of criminal case against the workman,
\nobviously, this Court was justified in observing that when the action was
\ntaken on the basis of pendency of a criminal case, the action of dismissal
\nof the workman must abide by the result of the trial.  The facts of the case
\nbefore us are totally different.  In this case, the General Manager has
\nexercised the power under the second part of the Standing Order 20(vi)
\nwhich empowered him to take action on satisfaction for reasons to be
\nrecorded in writing that it was not in the interest of security to continue
\nthe workman in service.  The direction in Hari Pada Khan, therefore,
\ndoes not apply to the factual matrix of the present case for claiming relief
\nby the appellant.\n<\/p>\n
\tThe appellant in Hari Pada Khan relied upon Hindustan Steel
\nLimited (II), and submitted that in that case, this Court struck down a
\nsimilar provision being violative of natural justice and also violative of
\nArticle 14.<\/a>  The Court, however, held that the principles of natural justice
\nhad no application when the authority was of the opinion that it would be
\ninexpedient to hold an enquiry and it would be against the interest of
\nsecurity of the Corporation to continue in employment the offender
\nworkman when serious acts were likely to affect the foundation of the
\ninstitution.  The Court also noted that a similar provision was held valid
\nand intra vires by this Court in Mathura Refinery Mazdoor Sangh v.
\nDeputy Chief Labour Commissioner & Others, Special Leave Petition
\n(Civil) NO. 11659 of 1992, decided on November 13, 1995.\n<\/p>\n
 \tMr. Rao then contended that even though the provision of Article
\n311<\/a> of the Constitution do not apply to the appellant being an employee
\nof the Corporation, the general principles behind the said provision would
\napply to the employees of the Corporation also.  He, therefore, submitted
\nthat while dealing with the case of an employee of the Corporation,
\nsecond proviso to Article 311(2)<\/a> and the decisions of this Court in
\ninterpreting the said provision would be kept in mind by the Court.  He
\nalso submitted that the Corporation, being the “State” within the meaning
\nof Article 12<\/a> of the Constitution, Article 14<\/a> would apply to the
\nrespondent and an order passed or action taken arbitrarily and without
\ncomplying with the principles of natural justice must be held null and
\nvoid.\n<\/p>\n
\t Reference in this connection was made to a decision of
\nConstitution Bench in Union of India & Another vs. Tulsi Ram Patel,
\n(1985) 3 SCC 398.  In Tulsi Ram Patel, certain civil servants were
\ndismissed from service by way of penalty by the Government by
\ninvoking the second proviso to Article 311(2)<\/a> of the Constitution.  They
\nchallenged the validity of the orders inter alia on the ground that the
\naction was against the principles of natural justice and second proviso to
\nArticle 311(2)<\/a> could not have been invoked.  This Court was, therefore,
\ncalled upon to consider the legality and validity of the orders in the light
\nof the provisions of Article 311 (2)<\/a> and observance of principles of
\nnatural justice.\n<\/p>\n
\tBy majority of 4 : 1, the Court upheld the action of the Government
\nof invoking exceptional power under the second proviso to Article
\n311(2).<\/a>  The Court observed that the principles of natural justice have
\ncome to be recognized as a part of the guarantee contained in Article 14<\/a>
\nof the Constitution and violation thereof would mean that the action
\nwould be arbitrary and irrational.  The Court also stated that Article
\n311(2)<\/a> required that before a civil servant is dismissed, removed or
\nreduced in rank, an enquiry must be held and reasonable opportunity of
\nbeing heard must be afforded to him in respect of the charges leveled
\nagainst him. The Court, however, observed that in certain circumstances,
\napplication of the principles of natural justice could be modified and even
\nexcluded.  Both in England and in India, it is well established that where
\na right to a prior notice and an opportunity to be heard before an order is
\npassed would obstruct in taking of prompt action, such a right could be
\nexcluded.  It could also be excluded where the nature of the action to be
\ntaken, its object and purpose and the scheme of the relevant statutory
\nprovisions warrant its exclusion. The maxim audi alteram partem could
\nnot be invoked if import of such maxim would have the effect of
\nparalyzing the administrative process or where the need for promptitude
\nor the urgency so demands.  The Court stated that if legislation and the
\nnecessities of a situation can exclude the principles of natural justice
\nincluding the audi alteram partem rule, a fortiori so can a provision of
\nthe Constitution, for a constitutional provision has a far greater and all
\npervading sanctity than a statutory provision.   It also stated that the
\nprinciples of natural justice having been expressly excluded by a
\nconstitutional provision, namely, the second proviso to Article 311(2<\/a>), it
\ncould not be reintroduced by a side door by providing for the enquiry.
\nThe Court, however, hastened to add that where the second proviso to
\nArticle 311(2)<\/a> is applied on an extraneous ground or a ground having no
\nrelation to the situation envisaged in that clause, the action would be
\nmala fide and void.  In such a case, invalidating factor may be refereable
\nto Article 14.<\/a>  The second proviso to Article 311(2)<\/a> was based on public
\npolicy, in public interest and for public good and it must be given effect
\nto.  Regarding opportunities to such Government servants who have been
\ndealt with in exercise of power under the second proviso to Article
\n311(2<\/a>), the Court stated :\n<\/p>\n
“In this connection, it must be remembered that a
\ngovernment servant is not wholly without any
\nopportunity.  Rules made under the proviso to Article
\n309<\/a> or under Acts referable to that article generally
\nprovide for a right of appeal except in those cases where
\nthe order of dismissal, removal or reduction in rank is
\npassed by the President or the Governor of a State
\nbecause they being the highest constitutional
\nfunctionaries, there can be no higher authority to which
\nan appeal can lie from an order passed by one of them.\n<\/p>\n
Thus, where the second proviso applies, though there is
\nno prior opportunity to a government servant to defend
\nhimself against the charges made against him, he has the
\nopportunity to show in an appeal filed by him that the
\ncharges made against him are not true.  This would be a
\nsufficient compliance with the requirements of natural
\njustice.  In Maneka Gandhi case and in Liberty Oil Mills
\nv. Union of India<\/a>, the right to make a representation
\nafter an action was taken was held to be a sufficient
\nremedy, and an appeal is a much wider and more
\neffective remedy than a right of making a
\nrepresentation.”\n<\/p>\n
\tThe submission of Mr. Rao is that second proviso to Article 311(2)<\/a>
\ndeals with three situations,\n<\/p>\n
\t(i) where a person is convicted on a criminal charge;\n<\/p>\n
\t(ii) where the disciplinary authority is satisfied for the
\n\treasons to be recorded in writing that it is not reasonably
\n\tpracticable to hold an enquiry; and\n<\/p>\n
\t(iii) where the President or Governor is satisfied that in the
\n\tinterest of the security of the State, it is not expedient to hold
\n\tan enquiry.\n<\/p>\n
\tAccording to Mr. Rao, Clause (vi) of Standing Order 20 likewise
\ntakes into account two eventualities;\n<\/p>\n
(i) conviction of a workman for a criminal offence by a
\ncourt of law; and\n<\/p>\n
(ii) satisfaction of the General Manager for reasons to be
\nrecorded in writing that it is neither expedient nor in the
\ninterest of security to continue a workman.\n<\/p>\n
\tHe submitted that the power under Clause (vi) of Standing Order
\n20 is a serious inroad on the right of a workman and must be construed
\nstrictly.  In other words, it is a drastic provision which totally excludes
\napplication of natural justice and audi alteram partem rule and that too
\non satisfaction of General Manager and not of the Corporation.  Clause\n<\/p>\n
(c) of second proviso to Article 311(2)<\/a> of the Constitution envisages the
\nsatisfaction of constitutional functionary, i.e. President of India or
\nGovernor of a State.  In the case of the respondent-Corporation, however,
\nthe power is conferred on General Manager  an officer of the
\nCorporation.  If this provision is upheld, there is every possibility and
\nlikelihood of power being abused or misused.  Such provision must,
\ntherefore, be held arbitrary and ultra vires of Article 14.<\/a>\n<\/p>\n
\tWe are unable to agree with the learned counsel.  The law is clear
\non the point.  Tulsi Ram Patel dealt with a similar provision and held it to
\nbe constitutionally valid and intra vires Article 14.<\/a>  Since it related to
\ncivil servants under the Union or under a State, Clause (c) provided for
\nthe satisfaction by the President or the Governor, as the case may be, “in
\nthe interests of the security of the State”.  Certified Standing Orders of
\nthe respondent-Corporation have limited application to the Corporation.
\nThere was, therefore, no question of security of State and hence, the
\nlimited power is conferred on the General Manager of security of the
\nCorporation.   General Manager is the highest administrative head of the
\nCorporation.  So it cannot be contended that the power has been
\nconferred on a petty officer of the Corporation.\n<\/p>\n
\tWe are equally not impressed and hence unable to uphold the
\ncontention that Clause (vi) of Standing Order 20 confers blanket or
\nuncanalised power on the General Manager.  In our judgment, sufficient
\nguidelines and safeguards have been provided in the Standing Orders,
\nthemselves, such as (i) the power is conferred on the highest
\nadministrative head of the Corporation; (ii) eventualities have been
\nspecifically and expressly stated in Clause (vi) of Standing Order 20; (iii)
\nsatisfaction of the General Manager that such an eventuality has arisen;\n<\/p>\n
(iv) recording of reasons in writing; and (v) right of appeal against the
\ndecision of the General Manager.  Such a provision, in our considered
\nview, cannot be held arbitrary or unreasonable, violative of Article 14<\/a> of
\nthe Constitution.\n<\/p>\n
\tMr. Rao may be right in submitting that in a given case, the
\nGeneral Manager may not exercise the power legally, properly and
\nreasonably.  In that case, the action would be held bad.  Apart from the
\nfact that there is an appeal against the order passed by the General
\nManager, an aggrieved party can also approach a High Court under
\nArticle 226<\/a>\/227<\/a> of the Constitution and\/or this Court under Article
\n32<\/a>\/136<\/a> of the Constitution.  Judicial review conferred on High Courts and
\non this Court by the Constitution remains unfettered and unaffected.\n<\/p>\n
\tIt is well settled that a provision which is otherwise legal, valid and
\nintra vires cannot be declared unconstitutional or ultra vires merely on
\nthe ground that there is possibility of abuse or misuse of such power.  If
\nthe provision is legal and valid, it will remain in the statute book.
\nConversely if the provision is arbitrary, ultra vires or unconstitutional, it
\nhas to be declared as such notwithstanding the laudable object underlying
\nit.\n<\/p>\n
\tBefore about five decades in A. Thangal Kunju Musaliar v. M.
\nVenkitachalam Potti & Anr<\/a>.  1955 (2) SCR 1196, dealing with a similar
\ncontention, speaking for the Constitution Bench, Bhagwati, J. stated;
\n “It is to be presumed, unless the contrary were shown
\nthat the administration of a particular law would be done
\n“not with an evil eye and unequal hand” and the
\nselection made by the Government of the cases of
\npersons to be referred for investigation by the
\nCommission would not be discriminatory.”\n<\/p>\n
\tAgain, in the leading case of State of Rajasthan & Others v. Union
\nof India & Others<\/a>, (1977) 3 SCC 592, a seven-Judge Bench was called
\nupon to consider a similar argument.  It was urged that extraordinary
\npower conferred by Article 356<\/a> of the Constitution could be abused.\n<\/p>\n
\tNegativing the contention, Bhagwati, J. (as he then was) stated;
\n “It must be remembered that merely because power
\nmay sometime be abused, it is no ground for denying
\nthe existence of the power.  The wisdom of man has
\nnot yet been able to conceive of a government with
\npower sufficient to answer all its legitimate needs and
\nat the same time incapable of mischief”. (emphasis
\nsupplied)<\/p>\n
\tVery recently, in Sushil Kumar Sharma v. Union of India &
\nOthers<\/a>, (2005) 6 SCC 281, constitutional validity of Section 498-A<\/a> of the
\nPenal Code was challenged inter alia on the ground of its misuse and\/or
\nabuse.   A prayer similar to one which has been made before us by Senior
\nAdvocate Mr. Rao was also made in Sushil Kumar Sharma that in case
\nthe provision is held to be constitutional and intra-vires, this Court may
\nformulate “guidelines” so that innocent persons are not victimized by
\nunscrupulous elements making false accusations.  Reiterating the
\nprinciple that mere possibility of abuse of legal provision would not make
\na statute invalid, the Court rejected the prayer.\n<\/p>\n
\tSince, in our opinion, sufficient safeguards have been provided in
\nthe Standing Orders and action taken by the General Manager under
\nStanding Order 20(vi) could be challenged in appeal under Standing
\nOrder 21 and in the High Court under Article 226<\/a>\/227<\/a> and in this Court
\nunder Article 32<\/a>\/136<\/a> of the Constitution, the same cannot be held
\narbitrary, unreasonable or ultra vires Article 14<\/a> of the Constitution.  If in
\na given case, there is abuse or mis-use of power, such action or order
\nwould be bad.  It would, however not make Standing Order 20(vi) ultra
\nvires.\n<\/p>\n
\tIn our opinion, the learned counsel for the respondent –
\nCorporation, is right that Standing Order 21 which enables the aggrieved
\nparty to file an appeal is very wide.  It reads thus:\n<\/p>\n
“21. Appeals :\n<\/p>\n
\tThe authorities competent to impose various
\npenalties mentioned in Standing Orders No. 20 as well
\nas the appellate authorities shall be notified by the
\nmanagement from time to time.  A workman on whom
\nany of the penalties is imposed shall have the right of
\nappeal to the authority notified in this behalf.  The
\nappeal shall be submitted within 15 days of receipt of
\nthe order of the punishing authority, and the appellate
\nauthority, shall dispose of the appeal within 30 days of
\nreceipt of the appeal.\n<\/p>\n
\tAt the further enquiry, if any, held in the appeal,
\nthe workman concerned shall be afforded reasonable
\nopportunity of explaining and defending his action
\nwith the assistance of a co-worker and the Presenting
\nOfficer may also be given the opportunity to furnish
\nfurther evidence.  The appellate authority may also
\nimpose enhance penalty after giving an opportunity to
\nthe applicant to show cause.”\n<\/p>\n
\tPlain reading of the above Standing Order makes it abundantly
\nclear that a workman on whom any of the penalties is imposed has a right
\nto appeal and the Appellate Authority has to decide such appeal of a
\nworkman in accordance with law after affording him reasonable
\nopportunity.  It also allows the appellant-workman to have assistance of a
\nco-worker.  It, therefore, cannot be said that once an action is taken under
\nClause (vi) of Standing Order 20, the matter is over.  In view of
\nexceptional situation contemplated by Clause (vi) and on satisfaction of
\nthe General Manager that an immediate action is necessary, he can
\ndismiss or remove the workman.  Such workman, however, may invoke
\nStanding Order 21 and may file an appeal and convince the Appellate
\nAuthority that the action taken by the General Manager in purported
\nexercise of power under Standing Order 20(vi) was unlawful or improper.
\nIf the Appellate Authority is satisfied, it may set aside the action of the
\nGeneral Manager and grant appropriate relief to the workman.  Even if
\nthe Appellate Authority holds against the workman and confirms the
\norder of dismissal\/removal, judicial review is available to the aggrieved
\nappellant, albeit on limited grounds.  To us, therefore, it is clear that the
\nStanding Order 20(vi) allows the General Manager to take an action in
\nemergency keeping in view exceptional situation which has arisen and he
\nis satisfied that the workman should be removed or dismissed from
\nservice without following procedure laid down in Standing Order 20(iii).
\nWhereas Standing Order 20(iii) deals with cases in general and provides
\nenquiry and pre-decisional hearing, Standing Order 20(vi) is an exception
\nto the general rule and deals with special cases under which an action can
\nbe taken.  Since appeal is provided in all cases, the case is one of post-
\ndecisional hearing.\n<\/p>\n
\tWe are aware of the normal rule that a person must have a fair trial
\nand a fair appeal and he cannot be asked to be satisfied with an unfair
\ntrial and a fair appeal.  We are also conscious of the general principle that
\npre-decisional hearing is better and should always be preferred to post-
\ndecisional hearing.  We are further aware that it has been stated that apart
\nfrom Laws of Men, Laws of God also observe the rule of audi alteram
\npartem.  It has been stated that the first hearing in human history was
\ngiven in the Garden of Eden.   God did not pass sentence upon Adam and
\nEve before giving an opportunity to show cause as to why they had eaten
\nforbidden fruit. [See R.v. University of Cambridge, (1723) 1 Str 557].
\nBut we are also aware that principles of natural justice are not rigid or
\nimmutable and hence they cannot be imprisoned in a straight-jacket.
\nThey must yield to and change with exigencies of situations.  They must
\nbe confined within their limits and cannot be allowed to run wild.  It has
\nbeen stated ; “To do a great right after all, it is permissible sometimes to
\ndo a little wrong”. [Per Mukharji, C.J. in Charan Lal Sahu v. Union of
\nIndia, (Bhopal Gas Disaster); (1990) 1 SCC 613] While interpreting legal
\nprovisions, a court of law cannot be unmindful of hard realities of life.  In
\nour opinion, the approach of the Court in dealing with such cases should
\nbe pragmatic rather than pedantic, realistic rather than doctrinaire,
\nfunctional rather than formal and practical rather than ‘precedential’.\n<\/p>\n
\tMr. Rao urged that the General Manager has mechanically and
\nwithout considering the facts of the case has passed the order under
\nStanding Order 20(vi) and on that ground also, it deserves to be set aside.
\nNow, the order passed by the General Manager in the exercise of power
\nunder Standing Order 20(vi) dated 6th May, 1999 is on record.  It is a self-
\ncontained order.  Detailed reasons have been recorded by the General
\nManager inter alia stating that the appellant herein had led a bunch of
\nhooligans to Haldia Refinery Hospital and assaulted and abused Dr.
\nBhattacharya, the Chief Medical Officer,  when he was in the hospital
\nalongwith other doctors attending a critical patient in the indoors.  The
\nappellant had slapped, kicked, pushed around and dragged Dr.
\nBhattacharya.  The appellant alongwith his associates prevented anyone
\npresent there from making any contact outside even on phone.  On
\ncoming to know about the incident, some officers reached the site.  They
\nwere also abused and threatened by the appellant.  The General Manager
\nthen went through the complaints\/reports of various persons present
\nduring and immediately after the incident and on careful examination of
\nthe material, he was satisfied that the appellant indulged himself in the
\nacts of violence without any valid reason or compelling circumstances or
\nprovocation.  Those acts of appellant resulted into an atmosphere of
\nterror being created within the hospital premises.  The doctors of the
\nhospital have jointly submitted a representation expressing their concern
\nand demoralizing and terrorising effect that was created in the minds of
\nthe hospital staff.  The General Manager also noted that the situation had
\narisen out of the incident which resulted into suspension of the hospital
\nservices resulting into great inconvenience being caused to the residents
\nof the Refinery Township.  The Officers’ Association which was the
\nrecognized Union had condemned the incident and demanded stern
\naction.  The General Manager perused the Memorandum submitted to
\nhim by the representative of Indian Medical Association of Haldia and
\nChaitanyapur Branches and the Association of Health Services Doctors
\n(WB), Haldia Branch, condemning the incident and assault on Dr.
\nBhattacharya.  The General Manager noted that the appellant was not
\ndirectly connected with the case of Parul Jana, the Head Sister-in-Charge
\nof Haldia Hospital, who was undergoing treatment at Apollo Hospital,
\nMadras, which was reported to be undertaken on 3rd May, 1999
\nsuccessfully.  The General Manager  was satisfied that the acts of the
\nappellant of threatening, intimidating and assaulting senior officer of the
\nRefinery Hospital and abusing and behaving unmannerly with superior
\nauthority amounted to subversive and prejudicial to the interest of the
\nCorporation.  He was also ‘satisfied’ and ‘convinced’ that the said acts of
\nmisconduct were ‘very grave and serious’.  Those acts jeopardized the
\nnormal operation not only of the Refinery Hospital but also of the
\nCorporation.  Besides carefully examining the facts and circumstances,
\nthe General Manager also examined the past record of the appellant.  The
\nappellant was issued with a punishment of withholding four annual
\nincrements with cumulative effect for acts of misconduct.  The
\nManagement, however, took a lenient and magnanimous view and
\nrevised the punishment twice, first on March 12, 1990 and then on
\nFebruary 4, 1997, thereby bringing down the punishment to withholding
\nof only one annual increment with non-cumulative effect. According to
\nthe General Manager, the appellant indulged in the acts of misconduct
\nwithout any provocation or compelling circumstances.  He was,
\ntherefore, satisfied that for serious and grave acts, action was required  to
\nbe taken again him.  According to the General Manager, keeping in view
\nthe magnitude of the issues involved and in the interest of restoring and
\nmaintaining normal discipline and morale of employees of the
\nCorporation, and the Hospital Staff in particular and to immediately
\nrestore the confidence of the Officers’ community, of their security in
\ndue discharge of their duties honourably and fearlessly, and in the interest
\nof the security of the Refinery, firm action was necessary.  He was
\nconvinced that delay would seriously jeopardize the interest of the
\nCorporation especially the vital requirement of providing Medical
\nServices to the sick and needy and the serious impact the incident may
\nhave on the normal operation of the Refinery.  On those grounds, and in
\nthe facts and circumstances, the General Manager was satisfied that it
\nwas not in the interest of the security of the Refinery and Staff to
\ncontinue the appellant in the employment of the Corporation and
\naccordingly he had dispensed with the enquiry under Standing Order
\n20(iii) and exercised power under Standing Order 20(vi) and passed the
\nimpugned order.  In our opinion, such action can never be termed
\narbitrary, irrational or unreasonable.\n<\/p>\n
\tWhen the appellant preferred an appeal against the order passed by
\nthe General Manager, the Appellate Authority considered the facts and
\ncircumstances of the case and dismissed the appeal by an order dated 11th
\nDecember, 2001.  The Appellate Authority noted that the appellant in his
\nMemorandum of Appeal did not deny various acts of misconduct leading
\nto the serious incident of 6th May, 1999 at Haldia Refinery.  The appellant
\nalso did not put forward any explanation or provocation for the
\nunfortunate incident but had accepted that he engaged in certain acts
\nwhich he would not like to remember.  The Appellate Authority,
\ntherefore, held that the acts of misconduct were ‘very grave and serious’
\nand were committed without provocation or compelling circumstances.
\n\tThe Appellate Authority also observed that Dr. Bhattacharya
\nsustained several injuries in the attack.  According to the report issued by
\nDr. Bimal Maiti, an independent doctor at Haldia Hospital, Dr.
\nBhattacharya had the following injuries on his person;
\n(1)\tlarge echymosis in front of right thigh;\n<\/p>\n
(2)\tlarge echymosis over right back of thigh;\n<\/p>\n
(3)\tsmall abrasion over the nose (It);\n<\/p>\n
(4)\tlarge bruise over cheek (It);\n<\/p>\n
(5)   \tmultiples scratches over cheek;\n<\/p>\n
(6)\ttender bruise over right elbow; and
\n(7)\thaematonia just below the right elbow.\n<\/p>\n
\tAccording to the Appellate Authority, therefore, the situation had
\narisen out of the incident in which it was neither expedient nor in the
\ninterest of the security of the Refinery and its personnel to continue the
\nworkman any more and the power was exercised by the General Manager
\nunder Standing Order 20(vi).  The Appellate Authority noted that in past
\nalso, the appellant had committed misconduct but a lenient view was
\ntaken and the punishment imposed on him was reduced.  Such
\npunishment, however, had no any deterrent effect on the appellant and he
\nrepeated similar acts of misconduct in 1999.  There was, therefore, no
\nground for further leniency.  Taking into account grave and serious
\nmisconduct committed and their likely repercussions on the general
\ndiscipline and safety of officers, the punishment imposed on him needed
\nno interference.  Accordingly, the appeal was dismissed.\n<\/p>\n
\tIn our view, in the facts and circumstances of the case, it cannot be
\nsaid that either the General Manager or the Appellate Authority in
\ncoming to the above conclusion had committed any error of law which
\nrequires interference in the exercise of power of judicial review by this
\nCourt.\n<\/p>\n
\tIn Satyavir Singh & Others v. Union of India &  Ors<\/a>.  (1985) 4
\nSCC 252, a three-Judge Bench of this Court has held that taking of
\nappropriate action in exceptional circumstances is a matter of assessment
\nto be made by the disciplinary authority and must be judged in the light
\nof the circumstances then prevailing.  Normally, it is the officer on the
\nspot who is the best judge of the situation and his decision should not be
\ninterfered with lightly.  In Satyavir Singh, this Court considered orders of
\ndismissal passed against some of the employees of Research and
\nAnalysis Wing (RAW) without holding inquiry as contemplated by
\nArticle 311(2)<\/a> of the Constitution.  The power was exercised by the
\ndisciplinary authority under the second proviso to Article 311(2).<\/a>
\nReiterating the principles laid down in Tulsi Ram Patel and upholding the
\naction, the Court observed that there are circumstances in which such a
\ndrastic action is called for.  The Court noted that it was not possible to
\nenumerate the cases in which it would not be reasonably practicable to
\nhold inquiry under Article 311(2<\/a>), but certain illustrative cases have been
\nhighlighted which included activities of terrorizing, threatening or
\nintimidating witnesses who might be giving evidence against a civil
\nservant or  threatening, intimidating or terrorizing disciplinary authority
\nor his family members or creating an atmosphere of violence or general
\nindiscipline and insubordination.  The Court also indicated that though it
\nwas a mandate of the Constitution to record reasons in writing for
\ndispensing with an inquiry, it was not necessary that such reasons should
\nfind place in the final order or they should be communicated to the
\ndelinquent.  It was no doubt emphasised that it would be better if such
\nreasons are recorded in the order itself and communicated to the
\ndelinquent officer.  Regarding suspension of a civil servant, the Court
\nopined that it is not necessary that the civil servant should be placed
\nunder suspension until such time the situation is improved and it becomes
\npossible to hold inquiry against him.  According to the Court, it would be
\ndifficult to foresee how long the situation would last and when normalcy
\nwould return or be restored.\n<\/p>\n
\tThe Court then said ;\n<\/p>\n
 “In certain cases, the exigencies of a situation would
\nrequire that prompt action should be taken and
\nsuspending a civil servant would not serve the
\npurpose and sometimes not taking prompt action
\nmight result in the trouble spreading and the
\nsituation worsening and at times becoming
\nuncontrollable.  Not taking prompt action may also
\nbe construed by the trouble-makers as a sign of
\nweakness on the part of the authorities and thus
\nencourage them to step up their activities or
\nagitation.  Where such prompt action is taken in
\norder to prevent this happening, there is an element
\nof deterrence in it but this is an unavoidable and
\nnecessary concomitance of such an action resulting
\nfrom a situation which is not of the creation of the
\nauthorities.”\n<\/p>\n
\tIn our opinion, ratio laid down in Central Inland Water Transport
\nCorporation v. Brajo Nath Ganguly<\/a>, (1986) 3 SCC 156 and in Delhi
\nTransport Corporation v. Delhi Transport Corporation Mazdoor
\nCongress<\/a>, 1991 Supp (1) SCC 600 : JT (1990) 3 SC 725 is not relevant or
\napplicable to the case on hand.  In those cases, power had been conferred
\non the authority to dispense with services of a permanent\/confirmed
\nemployee.  This Court, therefore, held that such a provision cannot be
\nsaid to be in consonance with law.  In Brajo Nath Ganguly, the Court
\nobserved that the provision was against public policy reflected in Section
\n23<\/a> of the Contract Act, 1872 and the provision was described as Henry
\nVIII clause.\n<\/p>\n
\tWe have also gone through the decision of the learned single Judge
\nas well as of the Division Bench.  It is clear from the record of the case
\nthat the Writ Petition was filed by the appellant immediately after the
\norder of dismissal was passed against him and the learned single Judge
\nconsidered the legality of the order.  The learned single Judge perused
\nthe relevant record produced at the time of hearing and noted that the
\nalleged incident did take place.  All persons requested for taking a strong
\naction against the petitioner (appellant herein) and no lenient view was
\ncalled for.  Even after sons of Parul Jana came down from the 1st floor
\nand informed the petitioner that their mother’s condition was stable, the
\npetitioner continued the agitation.  Being an employee of the
\nCorporation, the petitioner had no business to lead unruly mob resulting
\nin damage to property and assaulting the hospital-staff who were on duty
\nand were treating patients including a patient having cardiac treatment.
\n\tThe learned single Judge, therefore, concluded ;\n<\/p>\n
 “If such discipline is not considered to be grave, I
\ndo not know what more should be appropriate to
\njustify the order of dismissal”.\n<\/p>\n
\tWhen an intra-court appeal was filed against that order, the
\nDivision Bench again considered the contentions raised by the appellant.
\nDealing with the argument that the documents were not given, it was
\nsubmitted on behalf of the Corporation that no such prayer was made.
\nThe Court, therefore, observed relying on a decision of this Court in
\nAligarh Muslim University & Others v. Mansoor Ali Khan<\/a>, AIR 2000 SC
\n2783 that no prejudice had been caused to the appellant. The Court
\nexamined the report and perused the record. It was disclosed from the
\nmaterial placed before the Court that there was a situation which created
\ndisorder in the establishment for which police had to be called for and the
\nGeneral Manager (PJ) in-charge had to rush late at night.  People were
\nfrightened and there was ultimatum by staff-members due to which there
\nwas a possibility of break down of the entire system.  The Division
\nBench, therefore, stated; “These are situations with which the person at
\nthe spot has to deal with.  The authority on the spot is the best judge of
\nthe situation prevailing.  It is he who has to assess the situation and take
\nsteps”.  In the light of prevailing circumstances, the Division Bench
\nobserved, the action could not be termed as illegal, unlawful or perverse.
\nRegarding mala fide, the Court noted that adequate material had not been
\nplaced on record which would go to show that the order was malicious or
\nmala fide.  The Division Bench, therefore, dismissed the appeal.\n<\/p>\n
\tIn our view, neither the learned single Judge nor the Division
\nBench has committed any error of law and\/or of jurisdiction which
\ndeserves interference in exercise of discretionary jurisdiction under
\nArticle 136<\/a> of the Constitution.  As is clear, the situation has been created
\nby the appellant.  It was very grave and serious and called for immediate
\nstern action by the General Manager.  Exercise of extraordinary power in
\nexceptional circumstances under Standing Order 20 (vi) in the
\ncircumstances, cannot be said to be arbitrary, unreasonable or mala fide.
\nIt is well-settled that the burden of proving mala fide is on the person
\nmaking the allegations and the burden is “very heavy”.  [vide E.P.
\nRoyappa v. State of Tamil Nadu & Anr<\/a>.  (1974) 4 SCC 3].   There is
\nevery presumption in favour of the administration that the power has
\nbeen exercised bona fide and in good faith.  It is to be remembered that
\nthe allegations of mala fide are often more easily made than made out and
\nthe very seriousness of such allegations demands proof of a high decree
\nof credibility.  As Krishna Iyer, J. stated in Gulam Mustafa & Others v.
\nState of Maharashtra & Others<\/a> (1976) 1 SCC 800; “It (Mala fide) is the
\nlast refuge of a losing litigant”.\n<\/p>\n
\tWe hold Clause (vi) of Standing Order 20 of the Certified Standing
\nOrders of the respondent-Corporation valid, constitutional and intra vires
\nArticle 14<\/a> of the Constitution.  We also hold the action taken by the
\nGeneral Manager of the respondent  Corporation dismissing the
\nappellant  petitioner from service as legal and lawful.  We thus see no
\nsubstance either in the appeal or in the writ petition and both are,
\ntherefore, dismissed.  In the facts and circumstances of the case, however,
\nthere shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ajit Kumar Nag vs G.M.(P.J.)Indian Oil … on 19 September, 2005 Author: H C Thakker Bench: S.N. Variava, C.K. Thakker, Tarun Chatterjee CASE NO.: Appeal (civil) 4544 of 2005 PETITIONER: Ajit Kumar Nag RESPONDENT: G.M.(P.J.)Indian Oil Corporation. Ltd. Haldia & Ors. DATE OF JUDGMENT: 19\/09\/2005 BENCH: S.N. VARIAVA,C.K. THAKKER & TARUN […]<\/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-251389","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAjit Kumar Nag vs G.M.(P.J.)Indian Oil ... on 19 September, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajit-kumar-nag-vs-g-m-p-j-indian-oil-on-19-september-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajit Kumar Nag vs G.M.(P.J.)Indian Oil ... on 19 September, 2005 - 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