Karnataka State Road Transport Corporation and Another vs S. Karisiddappa and Others

M.F. Saldanha, J.—In the course of hearing of these two appeals, certain issues of some consequence that often arise in relation to disciplinary proceedings have fallen for determination and we do consider it imperative to lay down the principles in relation thereto. It is undoubtedly true that the immediate fall out of the imposition of a major penalty in disciplinary proceedings such as an order of dismissal or removal from service has often been interpreted in the Indian context as synonymous with economic death. The unemployment problem being what it is and the bleak possibility of re-employment in such cases being a stark reality, fervent pleas are invariably advanced that such orders be set aside on sympathetic grounds. If the case does not justify such a harsh punishment, undoubtedly, a Court will vary the order but in doing so, it is equally necessary to be guided by well defined rules of propriety rather than by emotional appeals, while it is true that even the theories of punishment contemplate a consideration of the aspect of mercy, this cannot prevail in the face of overwhelming evidence because it sends out wrong signals. Not only does the case create a wrong precedent, but it is tantamount to creating a situation whereby there is a premium on dishonesty and misconduct. Such a procedure eliminates the accent on discipline and the rule of law and creates an impression that howsoever great the misconduct, the errant employee can still get away by highlighting the aspect of sympathy. It is for this reason that the Courts are required to be judicious and to make a distinction between well placed sympathy and confine it to deserving cases and distinguish it from misplaced sympathy which can only be counter-productive.

The allied issue that has arisen and which, interestingly enough, raises a question as to whether while exercising the inherent powers under Article 226 of the Constitution, a Court would import the familiar principle of criminal jurisprudence in relation to the concept of punishment already undergone being held to be sufficient atonement for the misconduct, is a dimension that needs to be examined. In the case of a punishment that has taken effect such as an order of termination or dismissal and where the subsequent proceedings have lingered on for many years, the argument is certainly valid that the errant employee has undergone sufficient punishment and that there is consequently little justification to maintain the order in question. This situation will have to be distinguished from the one where it can be equated with the tender of pardon. In a given situation, where, by virtue of an order of dismissal, an employee has been out of employment for several years and where re-employment has become impossible by virtue of that order facts may sometime justify interference by a Court.

We are conscious of the fact that the consequences of a removal from service or dismissal will inevitably and in almost all the cases result in immense hardship. That circumstance alone would not justify the revocation of the order after the lapse of a certain number of years merely on the ground of hardship. On the other hand, however, if it were to be pointed out to the court that a technical infirmity in the proceedings would Justify a de novo enquiry, it is within the discretion of the Court to order reinstatement with or without backwages. In such a situation, it is equally permissible for the Court to consider the advisability of restarting the proceedings at such a late point of time when on the one hand, the employer would be severely handicapped and on the other, the employee would be even more handicapped in the conduct of the enquiry because of the efflux of time. Where the plea canvassed is a highly technical one, such as non-supply of particular document or material or minor infringement of the rules of natural justice, the holding of a fresh enquiry would inevitably end in the same result. It is not in the public interest in such situations to restart the proceedings particularly when a judicial authority is of the view that the punishment already undergone is sufficient atonement for the misconduct alleged. A writ court is invariably called upon to innovate and to could the reliefs in consonance with the principles of doing absolute Justice and this, in our view, will have to be the approach in such cases.

The facts of these two appeals do not require to be elaborately stated. The two (Sic-Respondents) were conductors employed by the Karnataka State Road Transport Corporation (hereinafter referred to as "the KSRTC"). They came to be charge sheeted by the Corporation for acts of some seriousness, namely, that they are alleged to have misappropriated the money collected from the bus passengers without having issued tickets to them. The inspectors concerned had caught the (sic. - respondents) virtually "red-handed" and had instituted disciplinary proceedings. After the charge sheets were served on them, enquiries were conducted and the charges were held to be proved. The disciplinary authority, principally on the ground that it was impossible to take a lenient view in such a case of misappropriation which was tantamount to a criminal offence, passed an order of dismissal in both the cases. What is most relevant is that the service record of both the employees indicated that they had been guilty of several acts of misconduct. many of which were in similar cases. In terms of criminal law, they could be categorised as habitual offenders and, consequently, they were dismissed from service. The appellate authority confirmed the order of dismissal and the Labour Court refused to interfere with the order. The appellants thereafter filed petitions before this court. In the course of hearing, both the petitioners virtually put forward a plea that the court should view their cases sympathetically, particularly in view of the fact that they had been out of employment for about seven years and that they would undertake to maintain absolute discipline and good behaviour in future. It was principally on this ground and on the undertaking being filed that the employees concerned had given up their claim for back-wages if they were reinstated that the learned single judge set aside the orders of dismissal and directed reinstatement.

The Corporation has assailed the orders passed by the learned single Judge through these two appeals. It is contended that the order of dismissal is fully justified in so far as the evidence conclusively establishes the charges, that the acts of misconduct were grave enough to warrant dismissal and that, therefore, the element of sympathy could not be imported. Mr. Menon, who appeared on behalf of the Kamataka State Road Transport Corporation, advanced a strong plea that the Courts should not interfere in cases of proven misconduct because it would then become impossible for the authorities to maintain any discipline. More importantly, he pointed out to us that the Karnataka State Road Transport Corporation is finding it extremely difficult to deal with the cases of misappropriation such as the present one and that it was, therefore, necessary that wherever culprits were caught that an example be made of them so that this would act as a deterrent to other persons. He demonstrated to us that the Corporation was losing huge amounts of money as, dishonesty was rampant and that, therefore, any sympathetic approach in such cases is against the public interest. We fully endorse the submissions canvassed by Mr. Menon and we need to add that unless a degree of firmness is demonstrated while dealing with such cases, that it would be impossible to curb and root out such corrupt practices. We have examined the record of the case very carefully and the orders passed and we find it impossible to uphold the submissions canvassed by Mr. Mukkannappa, learned Counsel appearing on behalf of the respondents, that the conduct of the enquiry is defective.

Learned Counsel, appearing on behalf of the respondents, drew our attention to the finding recorded by the learned trial Judge wherein he has held that the order of dismissal is liable to be set aside on the ground that the (sic.) respondents were not afforded a fair opportunity to defend themselves. We have carefully examined the grounds on which the learned single Judge has interfered and we find that they are high technical pleas which, even if upheld, would only mean that the minor infirmities will have to be corrected through a de novo enquiry but the result would be identical. In these circumstances, therefore, the real question that comes up is as to whether this Court should sanction such a procedure which would bring the appellants back to square one within a short period of time.

It is at this stage that learned Counsel advanced a plea that the Court should take cognizance of the fact that the dismissal orders are eight years old, that the (sic.) respondents are sufficiently and adequately punished for the acts of misconduct, howsoever serious, that the learned trial Judge has taken note of the fact that though they are reinstated, that they should not be paid any backwages and that they would only start with their current salary which again to is a sufficiently grave punishment. Mr. Menon, on behalf of the Corporation, submitted that the order of reinstatement was unjustified and that even if the record required the process of rectification of the errors committed in the course of the enquiry, that these being relatively inconsequential, no reinstatement should be ordered.

It is well settled law that there can be no dilution with regard to the rules of natural justice and where the record indicates an infringement thereof, howsoever technical, that a Court cannot condone it. In the present instance, the learned single Judge held that the employees did not have a full and fair opportunity to defend themselves and a careful scrutiny of the record justifies that finding. Unfortunately for the two appellants, their past conduct which has been taken into consideration by all the earlier authorities and which is relatively bad, creates a heavy prejudice against them. Mr. Menon, on behalf of the Corporation, submitted that even a de novo enquiry would inevitably result in a fresh order of dismissal and that, in these circumstances, it is not in the public interest to burden the Corporation either with having to pay the backwages or more importantly, having to reinstate the employees with a black record.

It is in this situation, and on such a background that we are required to virtually import the principle of criminal law. We take cognizance of the evidence adduced against the employees most of which is documentary and more importantly of their weak defence and visualise that a de novo enquiry would not end in any other result. Holding such an enquiry, therefore, would be academic. The appellants had virtually thrown themselves at the mercy of the Courts during the earlier proceedings and the contest had essentially been watered down to a plea for mercy. Applying the principle that an accused person even if found guilty can be released from further punishment if the punishment already undergone is sufficient atonement for the misconduct or offence, we hold that the learned trial Judge was right in exercising his judicial discretion on the special facts of the present case. The period of eight years out of employment and the loss of earnings for eight years is in our considered view, sufficient punishment for the misconduct even though it is relatively serious. Consequently, we do not propose to interfere with the decision of the learned single Judge in both the appeals except for certain clarifications.

We have already observed in no uncertain terms that proprieties are paramount in proceedings of this type and, therefore, on a benevolent consideration of the errant employees'' case, the Court cannot do manifest disfavour to an employer and more so, to a public Corporation where principles of public interest are predominant. Mr. Menon pointed out with some justification that this aspect of the matter requires to be highlighted because, undoubtedly, the employee always appears to be the underdog and in showing clemency in effect the Corporation is being seriously prejudiced. Misappropriation of funds is being done on a large scale and in instances where the acts are proved if the employee is continued in service, it acts as a reassurance to other wrongdoers that even if they are caught, there is still a hope for them. In these circumstances, it is essential that the law be applied with a sense of rectitude. Precisely for this reason, a Court is required to ex as to how sound the challenge presented to the validity of the orders is and, as indicated by us if it only requires a cosmetic or technical correction of procedure which will inevitably come to a full circle and end up in the same result, a Court should be slow in matters of awarding backwages or directing de novo enquiries. It is necessary to bear in mind that public time and public money are precious commodities which cannot be frittered away.

We need to refer to only one other aspect of the matter, namely, the submission canvassed by Counsel on behalf of the petitioners with regard to Regulation 25 of the Kamataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971. The regulation reads as follows :

"Without prejudice to the provisions of any law for the time being in force any Corporation servant who is found guilty of any act of misconduct or misbehaviour shall be liable to one or more of the penalties specified in Regulation 18 according to the gravity of the misconduct or misbehaviour and also on his past record."

The regulation provides that the past conduct of the employee can be taken into account for the purposes of imposing punishment. Learned Counsel, on behalf of the petitioners, placed heavy reliance on a Division Bench decision of this court in B. Nagaraju Vs. Karnataka State Road Transport Corporation and another, While considering the aspect of justness and fairness, the Division Bench had occasion to observe that if the disciplinary authority proposes to rely on the past record of the delinquent employee, that the rules of natural justice require that he should have an opportunity of meeting that aspect of the record. In other words the gravity of the punishment which would undoubtedly get aggravated on the basis of a previous bad record ought not to form the basis of a harsh punishment unless the employee has had an opportunity of showing cause against that material. Put very simply, it would mean that at the stage of imposing the punishment, where the charges are hold established if there is history of previous misconduct this factor should be brought to the notice of the employee so that he can dispute that record if he so desires. Undoubtedly, this is a salutary principle but it requires to be amplified.

In the first instance, instances of previous misconduct such as entries in the confidential record in the case of a Government servant or punishments, etc., if they are to be relied upon should be invariably made known to the employee prior to the stage of punishment because in numerous cases, the employee will be able to point out that these were subsequently expunged, modified or set aside and that the records may not be up to date. Secondly, there may be valid explanations or it may still be open to him to point out that those instances were in the distant past. All these, however, presuppose the fact that there is really something in dispute. In actual practice, however, one needs to take into account the reality of the situation, namely, that the past records of misconduct like previous convictions are something unanswerable and this aspect of the matter is of some consequence. The specific nondisclosure of this record and the exercise of going through the operation of affording the employee to show cause even if indulged in, cannot substantially affect or vitiate an otherwise valid proceeding. A classic instance is the present case where an argument was advanced that by virtue of the ratio in the decision referred to supra, is that the entire proceeding is vitiated whereas the fact remains that the previous instances of misconduct of the two employees that are on record cannot be disputed even at the stage of the proceeding before us. We, therefore, need to clarify the application of the principle and to amplify that it cannot be loosely or mechanically applied.

In the view that we have taken, we do not propose to interfere with the verdict of the learned single Judge, we clarify that the two employees shall be reinstated in service within a period of one month only by virtue of the application of the principle that the punishment undergone by them is adequate even having regard to the seriousness of the charges. We maintain that the charges were established in both the cases. The employees concerned shall not be entitled to the back wages payable to them up to the point of time when the interim orders passed in this appeal took effect. The order of reinstatement would, however entitle the employees, as far as the records go, to continuity of service for purposes of terminal benefits only. The solitary exception would be with regard to their being entitled to any increments or revisions of salary that have taken place during the interim period in relation to the posts held by them but they shall not be entitled to any promotions that they would have received during that period of time. It is clarified that for all intents and purposes, they shall be relegated to the same positions which they held on the date on which they were dismissed from service and shall move on from that stage onwards. The Corporation shall also administer a warning in writing to the two employees that any act of misconduct of any consequence committed by them hereinafter shall entitle the Corporation to terminate their services on the basis of their past record and the two employees shall give an undertaking to maintain good behaviour in keeping with this requirement.

The appeals, accordingly, succeed partially. In the circumstances of the cases, there shall be no order as to costs.