IMPORTANT POINT
Ordinary law of master and servant regarding doctrine of condonation of misconduct cannot be pressed into service where an employee is governed by statutory rules and under law the employer is required to consider the case of an employee for promotion against whom preliminary enquiry is pending.

JUDGMENT

V.N. Khare, J.-In the year 1974-75, the respondent herein was posted as Forest Range Officer in Majhgawan Range, Forest Circle Satna, (M.P.) when he was alleged to have committed certain acts of misconduct. Consequently, in the year 1976 a preliminary inquiry was initiated to inquire into the allegations against the respondent. On 7th April, 1977, the respondent was promoted as Assistant Conservator of Forest, while the preliminary inquiry was in progress. A charge-sheet was issued on 12.7.1982, and served upon the respondent, who was required to submit his explanation thereto. The charges contained in the Charge-sheet related to the year 1974-75 when the respondent was posted as Forest Range Officer in Majhgawan Range, District Satna (M.P.). After due inquiry, the State Government by an order dated 26th September, 1986, inflicted penalty on the respondent by withholding his two increments. The respondent appealed against the said order. During the pendency of the said appeal, the respondent filed Original Application before the Madhya Pradesh Administrative Tribunal (for short "the Tribunal") for setting aside the order dated 26th September, 1986 whereby his two increments were withheld.

2. The Tribunal, being of the opinion that by promoting the respondent to the Post of Assistant Conservator of Forest in the year 1977, the allegations of misconduct attributed to the respondent stood condoned and as such, the penalty imposed upon him by the impugned order dated 26th September, 1986 was without jurisdiction. The Tribunal accordingly set aside the order dated 26th September, 1986 passed by the State Government and allowed the Application of the respondent. Aggrieved by the judgment and order dated 23.4.1993 passed by the Tribunal in O.A. No. 492/89, the State Government has come up in appeal before this Court.

3. Learned Counsel for the appellants urged that the principle of condonation of misconduct under the ordinary law of Master and Servant is not applicable where in law the appointing authority is required to consider the case of an employee for promotion despite the pendency of preliminary inquiry against him and the employee is promoted to higher post having found fit for promotion. In short, the argument is, that by promoting the respondent to the post of Assistant Conservator of Forest, the allegation of misconduct against him, which is the subject matter of inquiry, in law, cannot be treated as condoned.

4. Before we advert to the argument of the learned counsel for the appellant, it may be seen as to what is the doctrine of condonation of misconduct under the ordinary law of Master and Servant. Under ordinary law of Master and Servant, an employer has option to punish an erring employee on the ground of misconduct committed by him, but the employer if voluntarily elects not to take any action to punish the delinquent officer, then it would be a case of Condonation of Misconduct by the master. In Labor and Labor Relations1 - it is stated thus :

"636. Condonation of misconduct.

The doctrine of condonation prohibits an employer from misleadingly agreeing to return his employees to work and then taking disciplinary action for something apparently forgiven. (Packers Hide Asso. v. NLRB (CA 8) 360 F2d 59). Condonation can be found, however, only where there is clear and convincing evidence that the employer has completely forgiven the guilty employee for his misconduct and has agreed to a resumption of the employer - employee relationship as though no misconduct had occurred. [Packers Hide Asso. v. NLRB (supra)]."

In L.W. Middleton v. Harry Playfair2, it was held thus:

"If a master on discovering that his servant has been guilty of misconduct which would justify a dismissal, yet elects to continue him in his service, he cannot at any subsequent time dismiss him on account of that which he has waived or condoned."

In District Council, Amraoti through Secretary v. Vithal Vinayak Bapat3, it was held that :

"Once a master has