Shri Sheshrao Vasant Gakhare vs The State Of Maharashtra, Through ...
2021 Latest Caselaw 15020 Bom

 LPA 113.12 judg.odt                                                                   1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH, NAGPUR.


                    LETTERS PATENT APPEAL NO.113 OF 2012
                                        In
                           Writ Petition No.275/2003


 Sheshrao Vasant Gakhare,
 R/o.-Hetikundi Farm, Post- Kannamwargram,
 Tah-Karanja (Ghadge)m Distt. Wardha.                        ...APPELLANT



                                        VERSUS


 The State of Maharashtra,
 through Regional Joint Director of Animal Husbandry,
 Amravati.                                         ...RESPONDENT
 ______________________________________________________________

                Shri S.A. Kalbande, Advocate for appellant.
                   Mrs. S.S. Jachak, AGP for respondent.
 ______________________________________________________________

                               CORAM : A.S. CHANDURKAR &
                                       PUSHPA V. GANEDIWALA, JJ.

Date on which argument heard : 22-09-2021 Date on which judgment pronounced : 14-10-2021

JUDGMENT : (Per PUSHPA V. GANEDIWALA, J.)

This Letters Patent Appeal arises out of the judgment of

the Single Bench of this Court dated 18-11-2011 in Writ Petition

No.275/2003, whereby the learned Judge quashed and set aside the

award passed by the Labour Court, Amravati, dated 28-05-2002 in

Reference (IDA) No.42/1995.

2. The facts, in brief, leading to the filing of the present

Letters Patent Appeal may be stated as under :-

The appellant was appointed as a Chowkidar at Farm

House, Pohara of the respondent since 24-04-1982 on monthly salary of

Rs.230/-. On 11-11-1985, the respondent discontinued the appellant

from services. As the appellant was not reinstated, he filed an

application under Section 2-A of the Industrial Disputes Settlement Act

before the Conciliation Officer. During conciliation proceedings, a

settlement was arrived at between the parties. The respondent has

agreed to reinstate the appellant on the condition that he will waive

the back wages. Accordingly, the appellant was appointed vide order

dated 30-09-1993 and he resumed duty on 11-10-1993. It is the

grievance of the appellant that again the respondent served him

termination letter dated 09-02-1994 stating therein that his services

were withdrawn with effect from 11-02-1994. It is his grievance that

without issuing show cause notice to him he has been abruptly

terminated from services.

3. Feeling aggrieved by the termination order, the appellant

filed a reference under Section 10(5) read with 12(1) of the Industrial

Disputes Act (for short, 'I.D. Act') with a prayer for reinstatement with

full back wages and continuity in service. The Deputy Commissioner of

Labour referred the matter to the Labour Court, Amravati. The learned

Presiding Officer of Labour Court accordingly issued notices to both the

parties. The appellant filed a statement of claim before the Labour

Court stating therein his grievance that he has been terminated without

giving an opportunity of hearing. While the respondents in their

written statement resisted the case of the appellant and specifically

pleaded that while settlement in the conciliation proceedings, his

appointment was subject to certain conditions. One of which was

verification of the criminal antecedents of the appellant. The

respondent received an information from the Deputy Superintendent of

Police, Wardha, vide letter dated 04-01-1994 informing that the

appellant was convicted in a cognizable offence and was sentenced to

pay fine of Rs. 100/- in default to undergo imprisonment for five days.

Accordingly, it is stated that vide order dated 09-02-1994, the services

of the appellant were withdrawn with effect from 11-02-1994.

4. The learned Presiding Officer of the Labour Court after

trial recorded the finding that the termination of the services of the

appellant is illegal. The appellant is held to be entitled for

reinstatement with continuity in service and full back wages. The

learned Presiding Officer observed that the respondent has not given

opportunity to the appellant to explain on the point of previous

conviction.

5. This judgment of the Labour Court was challenged by the

respondents/employer in Writ Petition No.275/2003. The learned

Single Judge of this Court has quashed and set aside the order of the

Labour Court predominantly on the ground that the

respondents/employer has rightly terminated the services of the

appellant/employee as his appointment was subject to the condition in

the appointment order and in view of the adverse Police report received

from the Superintendent of Police. This judgment of the learned Single

Bench of this Court is challenged before this Court by the appellant

employee.

6. We have heard Shri S.S. Kalbande, learned Advocate for

the appellant and Mrs. Jachak, learned A.G.P. appearing on behalf of

the State. We have also perused the record of the case with the

assistance of both the learned Counsel.

7. Shri Kalbande, learned Counsel for the appellant argued

mainly on the point that had the appellant been issued show cause

notice and called explanation about his involvement in the alleged

offence, he would have explained the real facts. The learned Counsel

invited our attention to the document (Annexure-B) purportedly

received from the Court of Judicial Magistrate First Class, Karaja (G.)

indicating the conviction of the appellant in Crime No.286/1991 on

19-04-1994 and sentence of Rs.100 in default, sentence of

imprisonment for 5 days. This crime was registered on 30-04-1992 for

the offence punishable under Section 12 of the Prevention of Gambling

Act. The learned Counsel also drew the attention of this Court to the

communication issued by the Deputy Superintendent of Police, Wardha

dated 04-01-1994, informing the respondent about registration of

Crime No.286/1991 for the offence punishable under Section 12 of the

said Act and he was convicted by the Court of J.M.F.C., Karanja on

20-01-1993 and sentenced to pay fine of Rs.100/- in default

imprisonment of five days. The learned Counsel submitted that as

per the record of the J.M.F.C. the date of conviction is 19-04-1994

which indicates that at the time of his removal, he was not convicted

and the trial was pending. The learned Counsel submits that had the

appellant been given an opportunity of hearing, he would have

explained the trivial nature of the offence and he would not have

pleaded guilty in the said offence. The learned Counsel urged to grant

relief as prayed for.

8. Per contra, Mrs. Jachak, the learned A.G.P. appearing for

the State, while supporting the impugned judgment of the Single Bench

of this Court submitted that the appellant is convicted for the

cognizable offence and in terms of the conditions in the settlement

order. She further states that the appellant was rightly removed on the

report of the Deputy Superintendent of Police informing about his

criminal antecedents. The learned AGP urged to dismiss the appeal.

9. We have considered the rival submissions. At the outset, it

is evident from the record that the termination of the appellant is on

the basis of the report of the Deputy Superintendent of Police, Wardha,

informing about his criminal antecedents. The record indicates

inconsistency with the date of conviction of the appellant. The extract

from the register of the learned Court of J.M.F.C., Karanja (G.) would

reveal his date of conviction as 19-04-1994 while the communication

dated 04-01-1994 of the Deputy Superintendent of Police, Wardha,

indicates the date of conviction of the appellant is 20-01-1993. It

appears very strange that how the Deputy Superintendent of Police,

Wardha, came to know about the conviction of the appellant when

actually the case was pending against the appellant at that point of

time and his conviction was much later thereafter i.e on 19-04-1994. In

any case, as rightly argued by the learned A.G.P. that a cognizable

offence was registered against the appellant and the trial was pending

against him at the relevant time. Now the question before this Court is

"whether the termination of services would be appropriate considering

the nature of offence in which he is convicted and he was not given an

opportunity of hearing?".

10. Shri Kalbande, learned Counsel for the appellant relied

on the decision of the Hon'ble Supreme Court in State of Uttar Pradesh

and another vs Ram Vinai Singh , reported in (2010) 15 SCC 305

wherein it is held that "before holding that the employee was

unsuitable and terminating his services, no notice was issued to the

respondent and no enquiry was conducted and he was not given any

opportunity of being heard. Therefore, the impugned termination of

service was in violation of the principles of natural justice, illegal and

arbitrary."

11. In State of Madhya Pradesh and others vs Hazarilal ,

reported in (2008) 3 SCC 272, the Hon'ble Apex Court applied the

doctrine of proportionality and held that-the power conferred on the

disciplinary authority to dispense with the enquiry against a

Government servant and to impose penalty under the relevant Rules

"on the ground of conduct which has led to his conviction on a criminal

charge" would not mean that irrespective of the nature of the case in

which he is involved or the punishment which has been imposed upon

him, an order of dismissal must be passed. Such a construction is not

warranted." It is further held that "an authority with a statutory

discretionary power is bound to take into consideration all the

attending facts and circumstances of the case before imposing an order

of punishment. While exercising such power, the disciplinary authority

must act reasonably and fairly."

12. In Shankar Dass vs Union of India and another , reported

in (1985) 2 SCC 358, the Hon'be supreme Court has held that "the

power conferred under Clause (a) of the second proviso to Article

311(2) of the Constitution, that power, like every other power, has to

be exercised fairly, justly and reasonably."

13. Keeping in mind the ratio as laid down in the aforesaid

authorities, we now appreciate the facts of the present case. As the

appellant was convicted and sentenced for the offence punishable

under Section 12 of the said Act and he was awarded fine of Rs. 100/-

in default, imprisonment of five days, by itself would reveal the nature

of the offence. No doubt, under the Prevention of Gambling Act the

Police has authority to arrest the accused without warrant like in the

case of cognizable offence in Indian Penal Code. However, the gravity

of the offence can also be seen from the nature of punishment provided

for the said offence.

14. The Hon'ble Apex Court in case of State of Madhya

Pradesh and others (supra) while dilating on the 'doctrine of

proportionality' in paragraph 8 of the judgment has cautioned the

disciplinary authority that "while imposing an order of punishment, the

disciplinary authority is bound to take into consideration all the

attending facts and circumstances of the case". In that case, the

employee was not convicted for any act involving moral turpitude.

15. In the case in hand, the nature of the offence is such that

only a fine of Rs. 100/- was imposed on him and as stated earlier which

itself suggests that the removal from the services on account of

conviction for such offence would be harsh. Furthermore, as rightly

argued by the learned Counsel Shri Kalbande, had he been given an

opportunity, he would have explained the circumstances under which

the crime was registered against him and whether he was convicted or

not. Therefore, the respondent has committed fault in not giving an

opportunity of hearing to the appellant before serving removal letter on

him directly. In such fact situations, the removal of the appellant from

the services is required to be held to be illegal and against the settled

principles of law. The respondents, without giving him fair opportunity

of hearing and without verifying the factum of the conviction of the

appellant, abruptly issuing him letter of removal, is clearly in violation

of the principles of natural justice. Moreover, for the sentence of fine of

Rs. 100/- he has been removed from the job. It is not the mandate of

the law that once an employee is convicted for any offence, of

whatsoever nature, he shall be removed from the services. The Hon'ble

Apex Court in the above cited judgments exposited that the authority

has to consider all the attending facts and circumstances leading to his

conviction, before imposing the harsh punishment of removing from

the service. There may be cases, for example under Motor Vehicles Act,

for breach of traffic rules, pity offences are registered against the

citizens and on pleading guilty and/or on payment of fine amount they

are released from the offence. Similarly, in the case in hand, the learned

counsel for the appellant has urged that had he been issued notice, he

would not have pleaded guilty in that petty offence. We found

substance in the argument. The removal of the appellant, in our

opinion, is clearly against the constitutional mandate.

16. The absence of due opportunity to the appellant to

putforth his case has not been considered by the learned Single Judge.

In our view, in the light of the aforesaid legal position, we are of the

considered view that the impugned judgment of the learned Single

Judge needs to be set aside and the same is accordingly set aside.

17. Coming to the aspect of relief that can be granted to the

appellant, it is seen that the appellant was re-employed on 30-09-1993

and his services were terminated on 09-02-1994. We are told that now

the age of the appellant has crossed the age of superannuation. Though

it was submitted by the learned counsel for the appellant that if the

order of termination was set aside, the appellant would be entitled to

all benefits flowing from the direction of the reinstatement such as

continuity of service, we are not inclined to issue that direction. The

order of re-employment dated 30-09-1993 clearly states that the

appointment of the appellant was purely on temporary basis. The

termination was effected within a short period of five months of his

re-employment. In these facts, we find it appropriate to award

compensation of Rs.1,00,000/- in lieu of reinstatement and back wages

and the respondent is directed to deposit the said amount within a

period of three months with the registry of this Court. The appellant

would be at liberty to withdraw the same with interest, if any, accrued

thereon. In case the said amount is not deposited within a period of

three months, the said amount would carry further interest at the rate

of 6% per annum till its realisation.

18. Letters Patent Appeal is allowed in aforesaid terms by

setting aside the judgment dated 18-11-2011 in Writ Petition

No.275/2003. The parties shall bear their own costs.

            JUDGE                                      JUDGE


 Deshmukh