A. Sundaram vs Pallavan Transport Corporation Ltd.

Ramanujam, J.—The appellant herein was a driver of the Pallavan Transport Corporation, who was arrested by the police and kept in

police custody for offences under Ss. 307, 322, 380 and 457, I.P.C. and S. 24, Arms Act. Consequent on his arrest and police custody

disciplinary action was initiated and the following charge was framed against him -

Arrested by police and kept under custody (Cr. No. 1690/74 and 1659/74) under Ss. 307, 322, I.P.C. and S. 24, Arms Act, and also under Ss.

457 and 380, I.P.C.

The appellant was asked to show cause why disciplinary proceedings should not be initiated against him in respect of the said charge. The

appellant submitted his explanation on 3rd December 1974 in respect of the said charge and his explanation was that he was falsely implicated in

the criminal case and that as the criminal case is pending trial in the criminal Court, the charge levelled against him may be dropped. However, the

authorities did not take any further action, as the criminal case was pending trial before the criminal Court. Subsequently, after the trial the appellant

was convicted by the criminal Court but was released under S. 4(1), Probation of Offenders Act, in C.C. 4217 of 1976 by the judgment dated

19th May 1976. Consequent on the said conviction, a show cause notice was issued to the appellant as to why he should not be removed from the

service in view of the conviction by the criminal Court. The appellant filed his representations to the show cause notice stating that though he was

falsely implicated in the criminal case, he pleaded guilty as he was advised that since the main accused has already been convicted, it is better for

him to plead guilty and get released under S. 4(1) of the Probation of Offenders Act and, therefore, the said conviction cannot be taken as the

basis for removing him from service. However, by an order dated 31st August 1976 the appellant was removed from service based on the

conviction by the criminal Court. The appellant filed an appeal against the said order of removal from service on 31st August 1976 to the Appellate

Authority, the Managing Director of Pallavan Transport Corporation, but without success. Thereafter, the appellant filed W.P. No. 4588 of 1977

and that petition came to be dismissed by Mohan, J. on the ground that the violation of Standing Orders pleaded by the appellant had not been

established and that the authorities are justified in passing the impugned order of removing the appellant from service based on the conviction by

the criminal Court. The view taken by Mohan, J. has been challenged in this writ appeal.

It is pointed out by the appellant in this appeal that Mohan, J. has proceeded on the basis that the petitioner did not produce the relevant

Standing Orders and in the absence of Standing Orders, the appellant cannot be taken to have established his plea that there is infringement of the

Standing Orders. According to the appellant, even though the Standing Orders have not been produced, the order of removal from service cannot

legally be sustained as there was no enquiry in the disciplinary proceedings, which have been initiated by framing a charge. If the said charge

levelled against the appellant is found established after due enquiry he can be punished for that charge. It is said that in this case, the charge framed

against him in the course of the disciplinary proceedings had nothing to do with the offence for which he was convicted before a criminal Court and

that such a conviction cannot be taken to establish the charge framed against him in the disciplinary proceedings. Therefore, merely because there

is a conviction by criminal Court, the charge levelled against him cannot be taken to have been established, so as to form basis for an order of

dismissal from service.

Mr. Chidambaram, learned counsel for the appellant, refers to the fact that the charge levelled against the appellant relates to the arrest and

detention by the police in respect of offences under Ss. 307, 322, 380 and 457, I.P.C., and S. 24, Arms Act. He also refers to the judgment of

the criminal Court, which shows that the appellant, in fact, has been convicted for an offence under S. 401, I.P.C. The learned counsel also

submits that the mere arrest or detention by the Police will not form the basis for a charge of disciplinary proceedings and it is only a conviction by

the criminal Court that can form the basis for a charge in the disciplinary enquiry. In this connection, the learned counsel refers to the Standing

Orders of the Pallavan Transport Corporation Ltd. Standing Order 25 shows that conviction by a criminal Court of an offence involving moral

turpitude and punishable with imprisonment, may form the basis for a disciplinary action. Section 25 nowhere enables the disciplinary action to be

initiated merely on the basis of an arrest made by the policy. Though, no doubt, the convictions by the criminal Court for an offence involving moral

turpitude and punishable with imprisonment, form the basis for a disciplinary action being taken, the mere arrest will not enable the disciplinary

authority to take disciplinary action on the basis of mere arrest alone.

In this case, as already stated, a charge was framed merely on the basis of the appellant''s arrest by the police, and while that charge was pending

enquiry, the criminal Court convicted him for a different charge. That is for an offence under S. 401, I.P.C., and the charge does not refer to an

offence under S. 401, I.P.C. for which he was punished. Since the charge levelled against the petitioner in the disciplinary proceedings and the

conviction by the criminal Court are for different offences and one does not have any relation to the other, on the basis of the conviction by the

criminal Court, straightway a punishment of removal from service cannot be imposed. Though the conviction can form the basis for a disciplinary

action as per Standing Order 25, we are not in a position to see how the conviction itself can form the basis for straightway dismissing from service

without framing a relevant charge. As already stated, in the criminal Court the appellant was convicted for an offence u/s 401, I.P.C. That section

runs as follows :-

Punishment for belonging to gang of thieves :-

Whoever, at any time after the passing of this Act, shall belong to any wandering or other gang of persons associated for the purpose of habitually

committing theft or robbery, and not being a gang of thugs or dacoits, shall be punished with rigorous imprisonment for a term which may extend to

seven years, and shall also be liable to fine."".

A perusal of the said provisions indicates that the appellant has been convicted for his association with a gang of persons, who are habitually

committing theft or robbery. The charge framed against the appellant in the disciplinary enquiry did not even remotely refer to the appellant being a

member of an association of a gang, which is habitually indulging in committing thefts or robbery. Thus, the appellant has been convicted for an

offence which is different from the offence referred to in the charge levelled against the appellant in the disciplinary enquiry. If the subject matter of

the charge levelled against the appellant in the departmental enquiry and the subject matter of the enquiry before the criminal Court related to the

same subject matter, then the conviction by the criminal Court can be taken as the basis for holding the appellant guilty of the charge levelled

against him without any enquiry on the charge. But, where the charge levelled against the appellant in the departmental enquiry and the conviction

by the criminal Court related to two different matters, we do not see how the appellant could be held to be guilty of the charge levelled against him

and the punishment of removal from service could be imposed on him. As already stated, it is open to the disciplinary authority to treat the

conviction by the criminal Court as the basis for taking the disciplinary action. In this case, the criminal Court''s conviction is not the basis for the

disciplinary action being taken against the appellant. As a matter of fact, a perusal of the show cause notice proposing punishment, and the ultimate

order imposing punishment, refers to the charge framed against the appellant and the conviction by the criminal Court for a different offence and the

conviction by the criminal Court has been taken as the basis for the punishment.

The learned counsel for the respondent contends that the order of punishment could be sustained on the basis that it is based solely on the

conviction by a criminal Court and not on the basis of the charge levelled against the appellant originally. In support of that submission, he refers to

Standing Order 26(ii)(c). But, it is not necessary at this stage to consider the scope of S. 26(ii)(c), for in this case the impugned order, removing

the appellant from service, does not purport to have been passed in exercise of the power contained in S. 26(ii)(c). In this case, the authorities

proceeded on the basis that the charge levelled against the appellant stands proved as a result of the conviction by the criminal Court and,

therefore, they are entitled straightway to impose punishment of removing the appellant from service. Standing Order 25 enables the initiation of

disciplinary action on the basis of the conviction by the criminal Court and the initiation of disciplinary action contemplates framing of a charge on

the basis of the the conviction by the criminal Court and an enquiry in respect of the said charge and the imposition of the penalty if the charge

levelled against the appellant on the basis of the conviction by the criminal Court is established. In this case, as already stated, the conviction by the

criminal Court is based on the admission of guilt by the appellant and his case is that he has been advised to plead guilty and get himself released

under S. 4(1), Probation of Offenders Act. In such circumstances, it is open to the appellant to put forward his case before the disciplinary

authority with reference to the conviction by the criminal Court and prove that notwithstanding the conviction by the criminal Court based on his

plea of guilt, he has not committed the offence for which the criminal Court has convicted him. Thus, even in spite of the conviction by the criminal

Court in the peculiar context, in this case the appellant should have been given an opportunity to put forward his case against the conviction by the

criminal Court before the disciplinary authority, and in this case such an opportunity is lacking. The disciplinary authority has straightway proceeded

to impose punishment on the appellant without framing the necessary charges and conducting any enquiry.

In this view of the matter, we are of the view that the impugned order of removing the appellant from service cannot legally be sustained. The

appeal is therefore allowed. There will be no order as to costs. It is, however, made clear that it is open to the respondent to take such action as is

possible based on the conviction by the criminal Court if they are so advised.

Appeal allowed.