C.V. Bhadang, J.
1. Heard Advocate Shri Shelat for the petitioner and learned Assistant Government Pleader Shri Rao for the respondents.
2. The petitioner joined the service as a Sepoy at Central Prison, Nagpur on 1.11.19964 and was eventually confirmed on 1.11.1965. The petitioner had put in 26 years of service before his dismissal on 8.9.1990, which order is subject matter of challenge in this petition.
3. On 29.4.1988, it is said that the petitioner was on leave and had gone to the Court of Judicial Magistrate First Class, Darwha District Yavatmal for his personal work. It so happened that the petitioner entered the Court room, chewing Pan. The learned Magistrate, taking cognizance of the incident, issued a show-cause-notice to the petitioner and proceeded to convict him for the offence punishable under Sections 116 and 117 of the Bombay Police Act (Fort short âthe Actâ). The petitioner was accordingly fined for Rs.50/ for the said offence. It appears that this incident and consequent order of conviction and sentence was not brought to the notice of his superiors by the petitioner. It further appears that subsequently it came to the knowledge of the competent authority, who proceeded to dismiss the petitioner from service by an order dated 8.9.1990 on the ground that it is not in public interest to retain the petitioner in service.
4. The petitioner challenged this order of dismissal in a departmental appeal before the Deputy Inspector of General Central Prison, Eastern Region, Nagpur. By an order dated 17.12.1990 the appeal came to be dismissed thereby confirming the order dated 8.9.1990. This was challenged by the petitioner in Writ Petition No.2904/1990 before this Court. On constitution of the Maharashtra Administrative Tribunal (MAT), the writ petition was transferred to the MAT and was registered as T.A. No.1391/1992. The learned Members of the MAT by a judgment and order dated 8.10.2003 has been pleased to dismiss the transfer application, which order is subject matter of challenge in the present petition.
5. The respondents have filed a return and have opposed the petition. It is contended that the petitioner was convicted and sentenced under the provisions of the Bombay Police Act in the year 1988 and the conduct of the petitioner as a member of disciplined force was unbecoming of a public servant. The petitioner also did not bring to the notice of the superiors the incident and the consequent order passed. It was only in the year 1990 that the information was received and acting on the basis of the conviction and in particular the Government Circular dated 12.6.1986 (Annexure RI), the competent authority has inflicted the punishment of dismissal. It is submitted that the departmental appeal as well as challenge before the MAT has been rightly negatived.
6. It is submitted by the learned Counsel for the petitioner that the basis on which the order is passed is firstly the conviction and the sentence in the nature of fine imposed under Sections 116 and 117 of the Act and secondly on the allegation that this was not brought to the notice of the competent authority by the petitioner. The learned Counsel submits that so far as the later ground is concerned, the privilege enjoyed by the competent authority under proviso (a) to Article 311 (2) of the Constitution of India would not be available. In other words, it is submitted that it is only on the basis of the conviction, the competent/disciplinary authority can act under proviso (a) to Article 311 (2) of the Constitution of India. It is, thus, submitted that insofar as the ground of non-communication of the incident by the petitioner is concerned, it would require a show-cause-notice before the same is acted upon. It is undisputed that such a show-cause-notice has not been issued. He, therefore, submitted that the second ground/reason would not survive and cannot be called into aid in support of the impugned action. Insofar as the ground of conviction is concerned, there are twofold submissions. It is submitted that having regard to the provisions of Sections 116 and 117 of the Act, the act of the petitioner of entering the Court room chewing Pan would not be covered thereunder. It is submitted that Section 116 of the Act, which is material for the purpose only speaks of smoking and spiting in contravention of a notice by competent authority in charge of such Government building or the building occupied by any public body or Court. Thus, it is submitted that Sections 116 and 117 of the Act were not attracted. Secondly, it is submitted that the order of dismissal in such a case is not automatic and the competent/disciplinary authority has to apply its mind to the facts and circumstances of the case, peruse the judgment of the Criminal Court and then proceed to take action, as may be deemed necessary.
7. The learned Counsel has placed reliance on a constitution Bench decision of the Hon'ble Supreme Court in the case of Union of India and anotherâ¦Versusâ¦Tulsiram Patel and others reported in AIR 1985, SC 1416, The Divisional Personnel Officer Southern Railway and another...Versus...T.R. Challappan, reported in AIR 1975 SC 2216 and Shankar Dassâ¦Versusâ¦Union of India and another reported in AIR 1985 SC 772. It is submitted that there is nothing in the present case to show that the disciplinary authority had applied its mind and had taken a decision in the light of the various factors as set out in Challappans case (Supra). It is submitted that the misconduct was not of such a nature, character and degree, which would call for a stringent action of dismissal from service.
8. The learned Counsel then submitted that once the order of dismissal is found to be illegal, the consequent order of reinstatement with back wages/salary and all consequential benefits has to be passed. Reliance in this regard is placed on the decision of the Honble Supreme Court in the case of Deepali Gundu Surwase...Versus...Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others, reported in (2013) 10 SCC 324.
9. On the contrary, it is submitted by the learned Assistant Government Pleader that the conduct of the petitioner in entering the Court hall chewing Pan was grossly unbecoming of a public servant and a member of disciplined force. The learned Assistant Government Pleader would submit that the petitioner being an employee serving in Central Prison ought to be aware of the decorum which is expected to be maintained while he appears before the Court of law. He submitted that this would be notwithstanding the fact that the petitioner may be on leave and might have attended the Court for his personal work.
10. Insofar as the argument based on Sections 116 and 117 of the is concerned, it is contended that the petitioner has not challenged the conviction and imposition of fine before the competent Court. As such, the said judgment and order having attained finality cannot now be questioned in collateral proceedings. The learned Assistant Government Pleader also submitted that the competent authority as well as the appellate authority has considered all the relevant aspects of the matter and have consciously reached the decision and the same does not call for any interference.
11. At the outset, it may be mentioned that the contention of the petitioner as raised in the petition that he was on leave on 29.4.1988 and had gone to the Court of the Judicial Magistrate First Class, Darwha for his personal work has not been specifically controverted. Thus, we have to proceed on the assumption that the petitioner was on leave on that day and had attended the Court for his personal reason. We would hasten to add that this is not to suggest that the petitioner can behave in a fashion as has been done, inasmuch as even an ordinary citizen is expected to maintain the decorum before the Court of law and more so when he happens to be a member of a disciplined force as the petitioner. However, that apart the question in the present case is about the appreciation of the nature of the proceedings initiated, the fine imposed and the action taken by the disciplinary authority based on such conviction.
12. The learned Judicial Magistrate had issued following show-cause-notice to the petitioner.
âTo,
Dnyaneshwar s/o Vithuji Ghude,
Aged about 47 years, Head Constable,
District Prison, Yavatmal.
That you on 29488 at 1240 P.M. in the court premises entered into court chewing pan which is prohibited under section 116, 117 of the Bombay Police Act.
You are, therefore, directed to submit your explanation within half an hour as to why legal action should not be taken against you.â
It is not in dispute that the petitioner was subsequently convicted and sentenced with fine of Rs.50/ under Sections 116 and 117 of the Act and under Chapter XXI of the Code of Criminal Procedure. In default of payment of fine, he was sentenced to undergo imprisonment of 15 days. The petitioner, however, has opted to deposit the fine. Acting on the conviction, Superintendent, Central Prison passed the following order on 08.09.1990.
âWhereas Shri Dyaneshwar Vithuji Ghude while working as Sepoy in Yavatmal District Prison has been convicted on 29.4.1988 by Judicial Magistrate First Class, Darvha under section 116 and section 117 of the Bombay Police Act (Case No.1 of 1988) Under Chapter 21 of Criminal Procedure Code. (Rule two, 1974) and fined Rs.50/ (Rupees Fifty) and in default to undergo sentence of 15 days. The judgment copy dated 1990 in respect of this conviction has been received in this office. Shri Dnyaneshwar Vithuji Ghude has not informed in writing about the above incident to this office or to the Superintendent Yavatmal Prison. And whereas considering the conduct of Shri Dnyaneshwar Vithuji Ghude, Sepoy Amravati Central Prison, it is not proper to continue him in the public employment since he has been convicted. And therefore as per the authority given to me under rule 13 (A) (3) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. The undersigned dismissed Shri Dnyaneshwar Vithuji Ghude, Sepoy Amravati Central Prison from State Services w.e.f. 891990.â
13. It may be mentioned that under proviso (a) to Article 311 (2) of the Constitution of India the disciplinary authority can only act on the basis of conviction and in that case issuance of show-cause-notice to the delinquent or an opportunity of hearing is not envisaged.
14. In the case of T.R. Challappan (Supra) the respondent was a Railway-Points-man. He was arrested for disorderly behaviour on Olavakkot Railway Station platform in a drunken condition and of having behaved in an indecent manner. A Criminal Case under Section 51 (A) of the Kerala Police Act was registered against him. The learned Sub-Magistrate after finding delinquent guilty had extended benefit of Section 3 of the Probation of Offenders Act instead of sentencing him. The disciplinary authority, acting on the same, had removed him from service, in view of the misconduct which has led to his conviction on a criminal charge under Section 51 (A) of the Kerala Police Act. The Hon'ble Supreme Court, considering two other similar cases which are decided by the common judgment, has held thus, in paragraph no.6 of the judgment.
â6. A close analysis of the facts of the cases of each of the respondents would doubtless reveal that the points involved in the three cases are almost identical, though the grounds on which the respective High Courts have proceeded may be slightly different. Mr. S.N. Prasad appearing of the appellants in all the three cases raised three points before us :
(1) That Section 12 of the Probation of Offenders Act contemplates an automatic disqualification attached to the conviction and not an obliteration of the misconduct of the accused so as to debar the Disciplinary Authority from imposing penalties under the Rules against an employee who has been convicted for misconduct.
(2) Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968, is in terms similar to proviso (a) to Art. 311 (2) of the Constitution and confers power on the appointing authority to pass an order of dismissal against an employee who is found guilty of a criminal offence without giving any further notice to the delinquent employee. Further, Rule 14 does not in terms contemplate that the appointing authority will consider the penalty after either hearing the accused or after ordering special inquiry.
(3) That in the absence of any provision similar to Rule 14 the Government is entitled, in the exercise of its executive power, to terminate the services of the employee who has been convicted of a criminal charge without any further departmental inquiry.â
15. A constitution Bench of the Hon'ble Supreme Court in the case of Union of India and another...Versus... Tulsiram Patel and others (Supra) had considered the âpleasure doctrineâ as enshrined under Articles 310 and 311 of the Constitution of India and has held thus in paragraph no.127 of the judgment:
â127. Not much remains to be said about clause (a) of the second proviso to Article 311 (2). To recapitulate briefly, where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan's case (AIR 1975 SC 2216). This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India (1985) 2 SCC 358 : (AIR 1985 SC 772) this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case.â
(Emphasis supplied)
16. In the case of Shankar Dass (Supra) it has been held that the power under Second proviso (a) to Article 311 (2) of the Constitution of India has to be exercised fairly, justly and reasonably.
17. It would be thus clear that in such a case the competent authority has to peruse the judgment of the Criminal Court and consider all the facts and circumstances of the case and the various factors set out in T.R. Challappan's case and then come to the proper conclusion about any of the three punishments, namely, of dismissal, removal or reduction in rank, which can be imposed on the delinquent/employee.
18. In the present case, so far as the ground of non-communication of the incident and the consequent conviction and sentence by the petitioner to the superior authority is concerned, the competent authority could not have proceeded on the basis of the same taking recourse to second proviso (a) to Article 311 (2) of the Constitution of India. In other words, the misconduct of non-communication of the order would be a separate head of charge, which although related to the conviction was subsequent in point of time and cannot be said to be integrally connected, so as to give privilege to the disciplinary authority to act under the proviso (a) to Article 311 (2) of the Constitution of India. We find that insofar as this head of the allegation is concerned, it clearly would have required show-cause-notice offering opportunity to the petitioner to explain his stand in this regard, if any, before the same could have been acted upon.
19. Thus, the question which remains is about the conviction and sentence of fine as imposed. Section 117 of the Bombay Police Act is a punishing Section and the substantive sentence for the present purpose is Section 116 of the Bombay Police Act, which reads thus :
â116. Disregard of notice in public building.
No person shall, in any Court, Police Station, Police Office, building occupied by Government or building occupied by any public body, smoke or spit in contravention of a notice by a competent authority in charge of such place and fixed to such Court, Station, office or building.â
Evidently, the act of entering Court building chewing Pan is not covered in this Section. It is trite that any provision defining an offence has to be read and construed strictly. There is no scope for liberal construction in such a case. We would again hasten to add that this may not be read as approving the act of the petitioner in entering the Court room chewing Pan. However, it has to be seen, that strictly speaking the act did not fall under Section 116 of the Act. In our considered opinion, the petitioner cannot be precluded from demonstrating the same in the present proceeding, notwithstanding a formal challenge being raised to the order of conviction and sentence. This is more so, when the same has resulted into a drastic civil consequence to the petitioner, of sustaining dismissal from service. We, therefore, find that going by the phraseology as used in Section 116 of the Act, the act did not strictly fall in the same. Be that as it may, assuming that the act did fall under Section 116 of the Act, the question is whether the competent authority was justified in imposing the punishment of dismissal on the petitioner. The only reason given is that the petitioner being a member of a disciplined force was not expected to act in this manner. Insofar as the second ground about the non-communication of the incident is concerned, we have already found that it cannot be made basis of the order, which is relatable to the second proviso (a) to Article 311 (2) of the Constitution of India. We have given our anxious consideration to the facts and circumstances of the case and the rival submissions advanced and we are unable to persuade our-self to hold that the action can be justified on the basis of such conviction and sentence of fine. We find that the punishment was shockingly disproportionate to the misconduct which has led to the conviction. Thus, the impugned order has to be set aside. This takes us to the next question as to what relief needs to be granted. It is undisputed that the petitioner has since reached the age of superannuation on 30.9.2003. It is now 24 years that the impugned order of dismissal was passed. In view of the fact that the petitioner has already reached the age of superannuation long before, there is no question of physical reinstatement of the petitioner in service. The question is only about the monetary benefits, namely, retiral benefits as also the back wages/salary.
20. In the case of Deepali (Supra) the appellant was working as a teacher in a primary school, who was proceeded against departmentally on charges of insubordination etc. and was placed under suspension and was subsequently terminated. The School Tribunal found action of the Management wholly arbitrary and vitiated due to violation of principles of natural justice. The School Tribunal also took cognizance of the fact that the appellant was not gainfully employed and this aspect was not controverted by the Management. The School Tribunal, in such circumstances, ordered her reinstatement with full back wages. That order was modified by a learned Single Judge of this Court as regards payment of the back wages. That was the order which was subject matter of challenge before the Hon'ble Supreme Court. It has been inter alia held that, as a normal rule an employee becomes entitled to reinstatement with back wages, once the dismissal/termination, is found to be illegal. After taking survey of the various decisions, the Hon'ble Apex Court has culled out the following principles on the question of grant of back wages.
â(i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
(ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
(iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
(iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
(v) The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or Article 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
(vi) In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-Ã -vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. (1979) 2 SCC 80.
(vii) The observation made in J.K. Synthetics Ltd. case, (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.â
It can thus be seen that it is the normal rule to grant back wages/salary once the Court/Tribunal awards reinstatement. However, this normal rule is subject to well-known exceptions and there is a discretion in the matter of grant of back wages/salary. Albeit such a discretion is judicial in nature and has to be exercised in the facts and circumstances of each case and no straitjacket formula can be laid down. In the case of Upekshit Samaj Kalyan Samiti, Ballarpur...Versus...Education Officer (Secondary) and others, reported in (2009) 15 SCC 194, the Hon'ble Apex Court had restricted the back wages to 50%, while in the case of South Bengal State Transport Corporation...Versus...Ashok Kumar Ghosh and others, reported in (2010) 11 SCC 71 it was held that, where the punishment was set aside on a technical ground, the back wages could not be granted and were accordingly denied.
21. In the present case, the appellate authority while deciding the departmental appeal has noticed the previous service record of the petitioner. It has been found that during the previous service the petitioner was inflicted with various punishments on seven occasions, which included withholding of annual increments on three occasions. The misconduct also included disorderly behaviour while on duty under the influence of liquor and abusing the Jail Superintendent. The appellate authority has also noted the confidential reports from the year 1972. 22. On overall consideration of the rival circumstances, we find that the petitioner would not be entitled to the back wages/salary. The only relief which can be granted is notional reinstatement with the retiral benefits. In that view of the matter, the following order is passed.
ORDER
(i) Writ Petition is partly allowed. The impugned order of dismissal dated 8.9.1990 is hereby set aside. The petitioner is notionally reinstated in service, however, without back wages/salary.
(ii) The petitioner shall be entitled to all retiral benefits including pension by treating him as retired normally on superannuation.
Rule is made absolute in the aforesaid terms with no order as to costs.