The Executive Engineer, ... vs Krishna Namdeorao Bagde
2016 Latest Caselaw 3156 Bom

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                                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                      NAGPUR BENCH : NAGPUR




                                                                                                                                                                             
                                                              WRIT PETITION NO.4448/2014




                                                                                                                                  
    1.          The Executive Engineer,
                Construction Division No. - II, 
                (M.S.E.B.) now M.S.E.D.C.L., 
                Ganesh Bhawan, Near Ajab Bungalow, 




                                                                                                                                 
                Civil Lines, Nagpur.

    2.          Assistant Engineer,
                Sub-Division, Parshivani,  
                (M.S.E.B.) now M.S.E.D.C.L.                                                                                                                          ..Petitioners.




                                                                                                       
                  ..VS..                                            
                  Krishna Namdeorao Bagde, 
                  aged about 57 Yrs., Occu. Nil, 
                  R/o Parshivani, Tah. Parshivani, 
                                                                   
                  Distt. Nagpur.                                                                                                                                   ..Respondent.
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                              Shri A. D. Mohgaonkar, Advocate for the petitioners. 
                              Shri M.P. Jaiswal, Advocate for the respondent.
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                                                                     CORAM :  Z.A.HAQ, J.

DATED : 23.6.2016.

ORAL JUDGMENT

1. Heard Shri A.D. Mohgaonkar, Advocate for the petitioners - employer and Shri

M.P. Jaiswal, Advocate for the respondent - employee.

2. The employee was appointed as Line Helper on Nominal Muster Roll on 15 th

July, 1989 and in due course his services were regularized. The employee was

convicted for an offence punishable under Section 307 of the Indian Penal Code and

was sentenced to undergo imprisonment for 5 years and to pay fine of Rs.500/-. The

employee was prosecuted on the charge that he had assaulted Biharilal Amrut Sayam

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near bus stand of Badegaon, Tah. Saoner, Distt. Nagpur on 8 th December, 1995 at

9.30 a.m.

In appeal the conviction of employee has been maintained, however, the

sentence is modified and the employee has been directed to undergo imprisonment

for 33 days i.e. the period for which he had been in jail.

According to the employer, it was not having knowledge about the prosecution

and conviction of the employee as the employee had not given intimation about it.

On 31st May, 2001 the petitioner No.1 issued an order stating that the employee had

not given information about his conviction and had played fraud on the employer

and, therefore, he was dismissed from service w.e.f. 31 st May, 2001.

3. The employee filed complaint under Section 28 read with Section 30 Items 1(a)

to (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention

of Unfair Labour Practices Act, 1971 (for short "Act of 1971") challenging the

dismissal order. The employer opposed the claim of the employee.

The Labour Court conducted the trial and by the impugned order dated 27 th

November, 2007 concluded that the employee failed to prove that the employer

indulged in unfair labour practice contemplated by Item 1 of Schedule IV of the Act

of 1971 and dismissed the complaint.

The employee challenged the above order before the Industrial Court in

revision which is allowed by the impugned order. The Industrial Court, by the

impugned order, has upheld the claim of the employee, set aside the dismissal order

and has directed the employer to reinstate the employee with continuity of service

and back wages. The employer being aggrieved by this order, has filed this petition.

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4. Shri Mohgaonkar, learned Advocate for the petitioners has submitted that the

Industrial Court has committed an error in upholding the claim of the employee on

the ground that the order of dismissal is bad in law as opportunity of defending was

not provided to the employee. It is submitted that the Maharashtra State Electricity

Board Employees Service Regulations (for short "Service Regulations") provide that if

an employee is convicted by a criminal Court or any other Court of law for any

offence and if in the opinion of the competent Authority employee is unsuitable for

continuing in the employment, then the employee can be removed from service

without any enquiry. Referring to the judgment given in the case of Deputy Director

of Collegiate Education (Administration), Madras V/s. S. Nagoor Meera reported in

1995(3) SCC 377, the judgment given in the case of Municipal Committee

Bahadurgarh V/s. Krishnan Bihari and others reported in 1996 (22) Administrative

Tribunals Cases 238 and the judgment given in the case of Hari Pada Khan V/s. Union

of India reported in (1996) 32 Administrative Tribunals Cases 481, it is argued that in

view of the specific Regulation under the Service Regulations, the enquiry was not

required and the Industrial Court has overlooked this aspect and, therefore, the

impugned order is unsustainable. It is submitted that the Labour Court had

dismissed the complaint filed by the employee by taking a possible view and it was

not open for the Industrial Court while exercising the revisional jurisdiction to set

aside the order of Labour Court and to substitute its own reasons. It is prayed that

the petition be allowed and the order passed by the Industrial Court be set aside.

5. Shri Jaiswal, Advocate for the employee has submitted that Regulation 10(a) of

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the Service Regulations does not confer an absolute power on the competent

Authority to remove from service every employee who is convicted for an offence. It

is submitted that the Service Regulations empower the competent Authority to

remove an employee from service without conducting enquiry only if the competent

Authority forms an opinion that after considering the surrounding circumstances and

the gravity of offence, the continuation of the employee, who is convicted, is not

suitable for the establishment. The learned Advocate has submitted that the

Industrial Court has rightly interpreted Regulation 10(a) of the Service Regulations

and has rightly set aside the order of dismissal. It is prayed that the petition be

dismissed with costs.

6. After hearing the Advocates for the respective parties, I find that the only issue

which arises for consideration is :

Whether Regulation 10(a) of the Service Regulations gives absolute power to the competent Authority to remove the employee from service without conducting any enquiry, if the employee is convicted for an offence ?

Regulation 10(a) of the Service Regulations reads as follows:

"10(a) No person shall be eligible for appointment or shall be continued in service of the Board, if he/she is declared insolvent by the Competent Court or convicted in a Criminal Court or any other

Court of Law for any criminal offence inclusive of offence under the Untouchability Act, which in the opinion of the Competent Authority, is considered unsuitable for employment, in view of the surrounding circumstances and gravity of the offence. The services of an employee so convicted shall be liable for termination without the necessity of enquiry or any disciplinary action proceedings."

The Regulation 10(a) is clear and unambiguous and cannot be given any other

meaning except that the competent Authority is required to consider the surrounding

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circumstances and the gravity of offence and then form an opinion whether the

employee who is convicted for an offence, is suitable for continuing in the

employment. The order dated 31st May, 2001 issued by the petitioner No.1 does not

show consideration of the surrounding circumstances and the nature of offence for

which the employee is convicted. The order dated 31 st May, 2001 records that the

employee is dismissed from service as he had not informed the employer about his

conviction. The facts on the record show that the petitioner No.1 has not acted as

required by Regulation 10(a) of the Service Regulations.

7. As recorded earlier, the employee was prosecuted for an offence committed by

him at bus Stand and not at the work place. It is not the case of the employer that

the offence is committed by the employee against some co-employee or the offence

has to do anything with the employment of the employee. The offence is not of such

a nature that the continuation of the employee would have brought disrepute to the

establishment.

8. In the above facts, in my view, the order issued by the petitioner No.1 on 31 st

May, 2001 cannot withstand the scrutiny of law as the petitioner No.1 has not acted

according to the Regulation 10(a) of the Service Regulations.

In view of the above, the argument made on behalf of the petitioners relying on

the judgments referred by the learned Advocate for the petitioners cannot be

accepted.

Though the reasons recorded by the Industrial Court for setting aside the order

of dismissal may not be correct, the conclusions cannot be faulted with for the

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reasons recorded above.

9. Hence, the following order:

    (i)         The petition is dismissed.  

    (ii)        In the circumstances, the parties to bear their own costs. 




                                                                             
    (iii)       The employee is illegally kept out of employment for last 15 years and as per

    record he is now 57 year old.




                                                            

The petitioners are directed to comply with the order passed by the Industrial

Court within two months.

If the order is not complied and the amount of back wages as ordered by the

Industrial Court is not paid to the employee within two months, the employer shall be

liable to pay interest on the amount at the rate of 9% per annum from 5 th September,

2013 i.e immediately after the passing of order by the Industrial Court.

JUDGE

Tambaskar.