2005 Supreme(SC) 1203

2005(7) Supreme 85
Supreme Court of India
(From Calcutta High Court)
S.N. Variava, C.K. Thakker & Tarun Chatterjee, JJ.
Ajit Kumar Nag —Appellant
versus
General Manager, Indian Oil Corporation Ltd. & Ors. —Respondents
Civil Appeal No. 4544 of 2005
With
Writ Petition (Civil) No. 703 of 2004
Decided on 19-9-2005
Counsel for the Parties :
For the Appellant : P.P. Rao, Sr. Advocate, Raja Chatterjee and G.S. Chatterjee, Advocates.
For the Respondents : Ashok Grover, Sr. Advocate, V.N. Koura and Ms. Paramjit Benipal, Advocates for M/s. Arputham, Aruna and Co., Advocates.

Important points
1. Exercise of extraordinary power in exceptional circumstances under Standing Order 20(vi) of Indian Oil Corporation Ltd. cannot be said to be arbitrary, unreasonable or malafide.
2. Acquittal by a criminal Court would not debar an employer from exercising power of dismissal of the employee in accordance with Rules and Regulations in force as the two proceedings - criminal and departmental are entirely different.

Headnote:Constitution of India—Article 32—Certified Standing Orders of Indian Oil Corporation Ltd.—Standing Order 20, Clause (vi)—Validity—Dismissal from service—Allegations of malafide—Misconduct of assaulting Chief Medical Officers of Haldia Hospital—Appellant joined service of Indian Oil Corporation at Haldia Refinery—Appellant led by a bunch of hooligans had visited the hospital and allegedly assault Chief Medical Officer there—Criminal proceedings were initiated against appellant—Appellant was acquitted—Whether impugned order dismissing him from service deserves to be quashed—(No)—Whether an employee of Indian Oil Corporation can be said to be holding a ‘civil post’, entitled to protection of Article 311 of the Constitution—(No)—Article 311 of the Constitution has no application to the facts of the case—Whether Clause (vi) of Standing Order 20 confers blanket or uncanalised power on the General Manager—(No).

       Held : As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings - criminal and departmental - are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused ‘beyond reasonable doubt’, he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of ‘preponderance of probability’. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside. (Para 10)

       As far as the status of the appellant is concerned, it must be stated that Mr. Rao, Senior Advocate fairly conceded at the hearing of the appeal and the writ petition that the appellant is not governed by Article 311 of the Constitution since he cannot be said to be ‘civil servant’. (Para 11)

       Upholding the objection and considering the ambit and scope of Article 311, this Court held that an employee of a Corporation cannot be said to have held a ‘civil post’ and, therefore, not entitled to protection of Article 311. According to the Court, the Corporation could not be said to be a ‘department of the Government’ and employees of such Corporation were not employees under the Union. The Corporation has an independent existence and the appellant was not entitled to invoke Article 311. (Para 12)

       We are equally not impressed and hence unable to uphold the contention that Clause (vi) of Standing Order 20 confers blanket or uncanalised power on the General Manager. In our judgment, sufficient guidelines and safeguards have been provided in the Standing Orders, themselves, such as (i) the power is conferred on the highest administrative head of the Corporation; (ii) eventualities have been specifically and expressly stated in Clause (vi) of Standing Order 20; (iii) satisfaction of the General Manager that such an eventuality has arisen; (iv) recording of reasons in writing; and (v) right of appeal against the decision of the General Manager. Such a provision, in our considered view, cannot be held arbitrary or unreasonable, violative of Article 14 of the Constitution. (Para 32)

       It is well settled that a provision which is otherwise legal, valid and intra vires cannot be declared unconstitutional or ultra vires merely on the ground that there is possibility of abuse or misuse of such power. If the provision is legal and valid, it will remain in the statute book. Conversely if the provision is arbitrary, ultra vires or unconstitutional, it has to be declared as such notwithstanding the laudable object underlying it. (Para 34)

       Plain reading of the above Standing Order makes it abundantly clear that a workman on whom any of the penalties is imposed has a right to appeal and the Appellate Authority has to decide such appeal of a workman in accordance with law after affording him reasonable opportunity. It also allows the appellant-workman to have assistance of a co-worker. It, therefore, cannot be said that once an action is taken under Clause (vi) of Standing Order 20, the matter is over. In view of exceptional situation contemplated by Clause (vi) and on satisfaction of the General Manager that an immediate action is necessary, he can dismiss or remove the workman. Such workman, however, may invoke Standing Order 21 and may file an appeal and convince the Appellate Authority that the action taken by the General Manager in purported exercise of power under Standing Order 20(vi) was unlawful or improper. If the Appellate Authority is satisfied, it may set aside the action of the General Manager and grant appropriate relief to the workman. Even if the Appellate Authority holds against the workman and confirms the order of dismissal/removal, judicial review is available to the aggrieved appellant, albeit on limited grounds. To us, therefore, it is clear that the Standing Order 20(vi) allows the General Manager to take an action in emergency keeping in view exceptional situation which has arisen and he is satisfied that the workman should be removed or dismissed from service without following procedure laid down in Standing Order 20(iii). Whereas Standing Order 20(iii) deals with cases in general and provides enquiry and pre-decisional hearing, Standing Order 20(vi) is an exception to the general rule and deals with special cases under which an action can be taken. Since appeal is provided in all cases, the case is one of post-decisional hearing. (Para 40)

       According to the Appellate Authority, therefore, the situation had arisen out of the incident in which it was neither expedient nor in the interest of the security of the Refinery and its personnel to continue the workman any more and the power was exercised by the General Manager under Standing Order 20(vi). The Appellate Authority noted that in past also, the appellant had committed misconduct but a lenient view was taken and the punishment imposed on him was reduced. Such punishment, however, had no any deterrent effect on the appellant and he repeated similar acts of misconduct in 1999. There was, therefore, no ground for further leniency. Taking into account grave and serious misconduct committed and their likely repercussions on the general discipline and safety of officers, the punishment imposed on him needed no interference. Accordingly, the appeal was dismissed. (Para 45)