IMPORTANT POINTS
Court shall not exercise its jurisdiction under Article 136 of Constitution of India, only because it may be lawful to do so.
Question as to whether acquittal in a criminal case will be conclusive in regard to the order of punishment imposed upon the delinquent officer in a departmental proceeding is a matter which will again depend upon the fact situation involved in a given case.

JUDGMENT

S.B. SINHA, J. —

1.Leave granted.

2.Respondent herein was employed as a helper at Kumuli Depot of Appellant. A criminal complaint was lodged against him for alleged commission of theft of Rs.37,086.05 on 03.11.1985. A disciplinary proceeding was also initiated against him. He pleaded not guilty to the said charge both before the disciplinary authority as also the criminal court. In the disciplinary proceeding, he was, however, found to be guilty of the said charge. He was dismissed from services only after a show cause notice was served on him.

3.Appellant filed an application for approval of the said order of removal purported to be in terms of Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short, ‘the Act’). Approval sought for was not granted on the premise that in passing the said order of termination, Clause 17(5) of the Certified Standing Orders of the Corporation, which required the management to take into account the past record before passing the order of dismissal, was not complied with.

4.During pendency of the said proceedings before the Tribunal, admittedly the Criminal Court held the respondent not guilty of commission of the charge of removal of the said amount of Rs.37,086.05. He was, therefore, acquitted.

5.A Writ Petition was filed by the appellant questioning the said Order of the Labour Court which was marked as Writ Petition No.1485/1990. A learned Single Judge of the said Court allowed the Writ Petition. Aggrieved by and dissatisfied therewith, Respondent preferred an appeal before a Division Bench of the High Court. By reason of the impugned judgment, the said appeal has been allowed holding :

“14.Unfortunately, the learned Judge while accepting the case of Management, committed two errors. The first one is that he proceeded that the charge leveled against the workman relates to misappropriation. It is not in dispute that based on the complaint of the Management, prosecution was launched against the workmen for the offence of theft, which also ended in acquittal in C.C. No. 75 of 1986 on the file of Judicial Magistrate, Uthamapalyam dated 14.10.1987. Secondly, the learned Judge committed an error in holding that when an employee is involved in the case of misappropriation of funds, no lesser punishment than the dismissal from service can be imposed. However, according to the learned Judge when a major punishment is to be imposed depending upon the nature or gravity of the offence, then the factors mentioned in clause 17(5) of the Standing Orders have some relevance.”

6.Appellant is, thus, before us.

7.Mr. T. Harish Kumar, learned counsel appearing on behalf of the appellant, would submit that Clause 17(5) of the Certified Standing Orders of the Corporation cannot be held to be imperative in character. According to the learned counsel, in a case of misconduct involving criminal breach of trust, the employer would be justified in imposing a punishment of termination of services and in that view of the matter, question of looking into the past conduct of the employee would not arise.

8.It was contended that past conduct of an employee would be taken into consideration, only in the event the misconduct proved is not a grave one. In a matter involving commission of grave misconduct on the part of the workman, it was contended, there is no place for generosity or sympathy and the case has to be dealt with firmly. Reliance, in this behalf, has been placed on Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) and Others v. Secretary, Sahakari Naukarara Sangha and Others,1(2000) 7 SCC 517] and Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane,2 [(2005) 3 SCC 254].

9.The learned counsel argued that it was not a case where the High Court could have taken into consideration the question as to whether the punishment imposed was shockingly disproportionate to the misconduct proved. It was urged that the jurisdiction of the Labour Court in considering the petition under Section 33(2)(b)