P. Embaru vs The Chairman, Madras Port Trust

S. Ramachandra Ayyar, C.J.—The Appellant was employed as a fitter in the engineering workshop of the Madras Port Trust. On 28th May

1959, he was found leaving the harbour gate taking-a brass metal rod with him. The police suspected and arrested him. Enquiries revealed that he

had procured the metal rod by cheating the charge man of the foundry shop inside the harbour. He was immediately placed under suspension by

the appropriate authority. The police too pursued their enquiries and ultimately a charge was laid against the Appellant for an offence u/s 420,

Indian Penal Code before the Second Presidency Magistrate, Madras. The learned Magistrate found him guilty of the offence but in view of the

fact that this was his first offence he was released u/s 4(1) of the Madras. Probation of Offenders Act 1937 on his executing a bond with a surety

to appear and receive the sentence when called upon to do so within a period of one year and in the meantime undertaking to keep the peace and

be of good behavior. This conviction was upheld by this Court in revision.

The Chief Engineer, Port Trust, relying on the conviction passed an order dismissing the Appellant from service with effect from the date or the

Judgment of the criminal court. The validity of this order was challenged before Veeraswami J., by the Appellant and being unsuccessful in his

attempt he has filed the present appeal.

It has been contended for the Appellant that the order of the employer imposing punishment of dismissal from service without even an enquiry is

opposed to the principles of natural justice. To appreciate this contention it is necessary to refer to the terms of employment of the Appellant.

Conditions of service of workmen employed by the Port Trust are regulated by its Standing Orders. Rule 17(2) of that order referring to a case

where a workman was arrested under a criminal charge, says:

Should be case against him result in his conviction and such conviction remains in force, the workman may be dismissed from service from the date

of his conviction.

This role is nothing but a recognition of the general rule applicable to all quasi-judicial adjudications as declared by this Court in Jerome D''Silva

Vs. The Regional Transport Authority, South Kanara and Another, When, therefore, an employer conformably to the rules proceeded to take

action against the Appellant there could possibly be no breach of any rule of natural justice. As far as the Appellant is concerned, he must be

deemed to have been given all opportunities of showing that he was innocent by the criminal Court. We are, therefore, unable to accept that there

is any substance in the grievance of the Appellant that there was no separate enquiry by his employer as to his guilt. Indeed, if there had been such

an enquiry the Port Trust Authorities would have been bound by the Judgment rendered by the criminal Court. There is nothing in Rule 17(2) of the

Standing Orders which is opposed to any principle of natural justice.

It was next contended that as the criminal Court had decided not to impose any sentence on the offender by proceeding u/s 4(1) of the Madras

Probation of Offenders Act, Section 12-A of that enactment would afford immunity to the Appellant from dismissal or any other punishment by the

employer by way of disciplinary action. Section 12-A states:

Any person who is found guilty of an offence and is dealt with under the provision of this Act shall not suffer any disqualification attaching to a

conviction for the offence: (Best omitted as unnecessary.)

Mr. J. Samuel appearing for the Appellant has urged that a liberal interpretation should be given to the word disqualification occurring in the

foregoing provision and that disciplinary punishment imposed consequent on a conviction as in the case of Standing Order 17(2) should be

regarded as prohibited by the terms of the section. There is a fallacy underlying the argument. The order of dismissal upon the Appellant is by

virtue of the powers vested in the employer under the Standing Orders. Rule 42 of the Standing Orders provides for disciplinary action for

misconduct against a workman. Category C refers to cases where the act or omission might result in suspension or dismissal. Sub-clause 1 to that

rule states:

No order of dismissal shall be made except after holding an inquiry against the workman concerned in respect of the alleged misconduct in the

manner set forth below.

It is this enquiry which is rendered unnecessary on cases coming Wilder Standing Order No. 17(2) since that proceeds upon the footing of there

having been a conviction upon an identical charge by the criminal Court and the conclusions reached by the Courts of the land being binding upon

the employer. That rule says that there is no need for any enquiry as contemplated by Standing Order 42(1). From this it follows that the conviction

by a criminal Court has merely obviated a departmental enquiry on the charges laid against a workman. In other words when action is taken under

Rule 17(2) of the Standing Orders it is not the result of any disqualification incurred by the workman as a result of his conviction in a criminal Court

but rather consequent upon departmental proceedings the enquiry relating thereto having been dispensed with by the force of Rule 17(2). Secondly

Rule 17(2) of the Standing Orders makes it optional on the authority to dismiss the workman; in other words even if there had been a conviction,

the authority may continue the workman in service. The punishment imposed, therefore, upon a workman taking advantage of Rule 17(2) cannot

be a disqualification. A disqualification properly so-called should legally by its own force disqualify or disable him from continuing in service. The

option vested in the authority under Rule 17(2) to retain an erring employee in service in spite of his conviction by a criminal Court shows that it is

not a disqualification per se or simply automatic.

Mr. V.V. Raghavan, learned Counsel for the Madras Port Trust has brought to our attention a number of statutory provisions as illustrating what

a disqualification means. He referred in this connection to Sections 49 and 50 of the Madras District Municipality Act, Sections 52 and 53 of the

Madras City Municipal Act, Sections 55 and 56 of the Madras Local Board Act and Sections 29 and 26 of the Madras Village Panchayats Act

which respectively disqualify a candidate or councilor on a conviction by a criminal Court. These are cases where the statutes attach the disability

to a candidate standing for election or to a councilor to sit at the meetings of the board. Section 46(1) of the Madras Hindu Religious and

Charitable Endowments Act, 1951 prescribes that a non-hereditary trustee if he is sentenced by a criminal Court would cease to hold office. These

are ways in which a disqualification by reason of a criminal Court operates automatically on the passing of the Judgment. It cannot, therefore, be

held that the punishment imposed by the authorities of the Port Trust on the Appellant contravene the provisions of Section 12-Aof the Madras

Probation of Offenders Act as conviction by a criminal Court has not resulted in any disqualification.

In R. Kumaraswami Aiyar Vs. Commissioner, Tiruvannamalai Municipality and Others, , the rules framed by a municipality for regulating the

conditions and tenure of service of its employees provided for the dismissal of an employee on a conviction by a criminal Court. It was held that

such a conviction would not automatically amount to a disqualification. Rajagopala Ayyangar J., who decided the case, further held that the effect

of an order u/s 12-A of the Probation of Offenders Act would not be to obliterate misconduct on which it would be competent for the employer to

take disciplinary action. Section 12-A of the Madras Probation of Offenders Act was held to save an automatic disqualification only.

Learned Counsel for the Appellant next contended that as under the Standing Orders the employer had not given the Appellant an opportunity

to show cause why the extreme penalty of dismissal from service should not be visited upon him, the entire proceedings should be held invalid. In

case of offences falling under Rule 42, no order of dismissal shall be'' made except after holding an enquiry against the workman concerned and the

workman has to be given an opportunity to answer the charge he is entitled even to be permitted to be defended by a workman working in the

same department. But this procedure was not followed in the present case as the workman had been convicted by a criminal Court of competent

jurisdiction. Sub-rule 3 of Rule 42 states that in awarding punishment under this standing order (Rule 42), heads of departments shall take into

account the gravity of the misconduct, the previous record of the workman and any other extenuating or aggravating circumstances that may exist.

Rule 17(2) gives an option to the authority to dismiss the workman in the case of a conviction by a criminal Court. It will, therefore, be obligatory

on the part of the employer to consider in a ease falling u/s 17(2) of the Standing Orders, whether the punishment of dismissal might be inflicted or

a lesser penalty should be imposed. In the present case the Appellant had been in service since April 1928, and was promoted to the post of fitter

in the year 1948; he was convicted by the Magistrate on 20th July 1959. The revision petition against his conviction was dismissed by the High

Court on 2nd November 1959. It was during the interval between the date of his conviction by the Magistrate and the date when his conviction

was upheld by the High Court, that the Chairman of the Port Trust sanctioned the dismissal. That was on 24th September 1959. About twenty

days later the chief engineer dismissed the Appellant, on the ground that he had been convicted by a criminal Court. The contention of the learned

Counsel for the Appellant is that as there had been no enquiry by the employer in the present case and as no opportunity had been given to the

worker to show his past good conduct, did not merit dismissal; the order of dismissal must beheld to be invalid. Although such an opportunity was

not given, there is nothing in the record to show that the Chairman of the Port. Trust did not take into consideration all the relevant factors before

deciding on the dismissal of the workman. That authority might have been no doubt well advised in a case coming under Rule 17(2) of the Standing

Orders if he were to give an opportunity to the workman concerned to show why the punishment of dismissal should not be inflicted upon him. But

assuming that it erred in not so doing it is very doubtful whether the jurisdiction of this Court under Article 226 of the Constitution could properly

be invoked. The Respondent is a statutory authority but the terms and conditions of service of the Appellant under the Respondent are purely

contractual. Whether the termination of service under the contract for a breach of the terms thereof would render it justifiable is a matter which, it is

not necessary for us to decide in the present ease, as we find that this point was not urged before the learned Judge. In the petition itself there has

been no specific reference to it although it might be said that paragraph 9 of the Appellant''s affidavit is wide enough to cover every aspect. The

only point argued before the learned Judge related to the effect of Section 12-A of the Madras Probation of Offenders'' Act, 1937. On that we

have already expressed our agreement. The appeal, therefore, fails and is dismissed. There will be no order as to costs.