C.A. Ganapathy vs The Superintending Engineer, Vellore Electricity System and Another

P. Ramakrishnan, J.—The petitioner in this writ petition is one C. A. Ganapathy. He was employed as a Clerk in the former Madras

Electricity Department from 14th July, 1947. He was promoted as telephone mechanic on 9th September, 1955. He was elected as the Secretary

of the Madras Government Electricity Employees'' Union, Papanasam. He was then transferred to Vellore. The Electricity Department of the

Madras Government was abolished on 1st July, 1957, and in its place the Madras State Electricity Board, a statutory body, was constituted, and

the petitioner continued his employment under the State Electricity Board. He was elected as the Secretary of the Madras State Electricity Board

Employees'' Union, Vellore System, consisting of about 2,000 workers, soon after 1st November, 1957 when he joined the Vellore Electricity

System. Several charges were framed against him at this period by the Department on one ground or other. The petitioner alleges that the charges

were framed against him for the indirect purpose of victimisation because of his trade union activities. But we are not concerned in this writ petition

with these charges, because no punishment was actually inflicted on the petitioner in pursuance of those charges. What we are concerned with,

however, is the consequence which followed when the petitioner organised a lottery on 19th June, 1960 for the purpose of raising a fund to help

the workers involved in accidents in the?course of their employment as well as to provide for the families of the workers who meet with death in

such accidents. The petitioner not being well conversant with criminal law did not know that before he could take part in such a lottery, prior

approval of the Government u/s 294-A of the Indian Penal Code was necessary and that a lottery without such prior approval would be illegal. He

was prosecuted for the contravention of Section 294-A of the Indian Penal Code before the Additional Sub-Magistrate, Vellore, convicted and

fined Rs. 200. On 5th July, 1962, soon after this conviction he was asked to show cause by the respondent, his departmental superior, as to why

he should not be dismissed from service by reason of his conduct which led to his conviction in the Criminal Court for an offence under the Indian

Penal Code. On 14th July, 1962, the petitioner submitted a reply that since an appeal against his conviction before the District Magistrate was

pending, no further action should be taken. The District Magistrate, Vellore, dismissed the appeal on 28th July, 1962, but reduced the fine from

Rs. 200 to Rs. 20. The District Magistrate appears to have made the comment in the course of his judgment that in taking part in the lottery, the

petitioner was not actuated by any motive for personal gain. He asked for some more time from the Superintending Engineer, Electricity System,

Vellore, who was the punishing authority, for submitting his explanation in the departmental proceedings as the matter involved complicated

questions. But by order dated 14th December, 1962 the Superintending Engineer dismissed the petitioner from service. It is alleged by the

petitioner that in punishing him in this manner, the facts that surrounded his conviction were not taken into consideration but only the mere fact of

conviction was considered. His appeals to the higher authorities were all dismissed, and he has filed this writ petition for the issue of a writ of

certiorari under Article 226 of the Constitution quashing the above order.

The charge framed against the petitioner is this:

The Collector of North Arcot District, Vellore, has stated that Sri C.A. Ganapathy, Telephone operator (on leave) and Sri T. V. Selvaraj,

N.M.R., have been convicted u/s 294-A of Indian Penal Code in C.C. No. 165 of 1962 of Sub-Magistrate I, Vellore.

It is proposed to dismiss Sri C.A. Ganapathy and Sri T. V. Selvaraj, from service as per Rule 17 (c) (i) of the Madras Civil Services

(Classification, Control and Appeal) Rules.

Sri C.A. Ganapathy, Telephone Operator (on leave) and Sri T.V. Selvaraj, N.M.R., are directed to show cause why they should not be dismissed

from service. Their explanation should reach this office within a week from the date of receipt of this memo., failing which it will be construed that

they have no explanation. to offer and further action taken as proposed in para. 2.

A further memo was served on the petitioner on 24th July, 1962 after his explanation to the earlier memo, was received. In that explanation he had

stated that as he had filed an appeal, further action should be dropped. Thereafter the authority came to a provisional conclusion about his guilt and

asked him to show cause why he should not be dismissed on the charge. But in the meantime, the appellate Court delivered its Judgment on 28th

July, 1962 wherein two points are mentioned. One is that the petitioner had not derived any pecuniary interest from the transaction and secondly

the petitioner was likely to lose his job on account of his conviction. These circumstances were taken into account by the appellate Court to reduce

the fine to Rs. 20. Thereafter the impugned order of dismissal was passed by the Superintending Engineer on 14th December, 1962. In that order

reference is made to the fact that conducting a lottery without prior sanction from the Government (and the Board) was an offence u/s 294-A of

the Indian Penal Code and it also involved a violation of Rule 5 (1) of the Government Servants'' Conduct Rules,, which are being followed for the

staff of the Electricity Board. The order also states that the further time of 15 days which the petitioner asked for submitting his explanation on 5th

August, 1962 was granted to him, but upto the date of the order, namely, 14th December, 1962, the petitioner had not submitted his explanation.

Therefore, he was dismissed from service.

Learned Counsel for the petitioner, urged in the first place that there is a reference in the order of the respondent Superintending Engineer, to the

violation of Rule 5 (1) of the Government Servants'' Conduct Rules, which refers to a Government servant soliciting subscription for funds, as

amounting to breach of the conduct rules. It is urged that no separate memo of charges was served on him for this contravention. As against this, it

is pointed out on behalf of the respondent, that the order of punishment says that the petitioner was punished really for the conduct that led to his

conviction and not for the violation of Rule 5 (1) of the Government Servants'' Conduct Rules. At hearing of the writ petition, learned Counsel for

the respondents, Superintending Engineer, Vellore Electricity System and the Chief Distribution Engineer, Madras State Electricity Board,

represented that they relied only upon the circumstance of the conviction, and not upon any violation of the Government Servants'' Conduct Rules,

for supporting the order of dismissal. Therefore the petitioners objection of there being no separate charge for the contravention of Rule 5 (1) of

the Government Servants'' Conduct Rules, appears to lack substance.

The second point urged by the learned Counsel for the petitioner is that on-dealing with the charges the respondents treated the factum of

conviction as the ground for dismissal of the petitioner. They failed to take into consideration that what is material in such cases is the conduct that

led to the conviction. This point is stressed in Rule 17 (c) (i) of the Madras Civil Services (Classification, Control and Appeal) Rules where it is laid

down that the requirements of sub-rules (a) and (b), (that is the provisions for a detailed enquiry) shall not apply where it is proposed to impose on

a member of a service any of the penalties mentioned in rule 8 or 9 on the basis of facts which led to his conviction in a criminal Court. The same

emphasis on conduct which led to the conviction in a criminal Court, is also found in Article 311 (2) proviso (a) of the Constitution, where it is

stated that in such a case the detailed enquiry laid down in Article 311 (2) could be dispensed with. It appears to me that the objection raised by

the learned Counsel for the petitioner that the authorities merely laid stress on the factum of conviction of a criminal offence has no substance,

ignoring the fact that led to the conviction. At the time when the charge was framed and the provisional conclusion was arrived at, the petitioner

was clearly informed that he was being proceeded against under the provisions of Rule 17 (c) (i) of the Madras Civil Service (Classification,

Control and Appeal) Rules by reason of his conviction. This clearly implies that it was the circumstances that led to his conviction which were in the

mind of the authorities. These circumstances were also in the knowledge of the petitioner. In the actual order of punishment passed on 14th

December, 1962, the circumstances that the conduct of a lottery without prior sanction from the Government was an offence u/s 294-A of the

Indian Penal Code, was prominently stressed. Therefore, it cannot be held the authority in imposing the punishment merely took the conviction into

consideration and ignored the conduct of the petitioner. Again it was argued by the learned Counsel for the petitioner that if the authorities had in

mind the conduct of the petitioner more prominently than the conviction, they would have referred to two circumstances mentioned by the District

Magistrate in his appellate Judgment, namely, (1) that the petitioner had not acquired any pecuniary gain for himself by the lottery and (2) that the

case deserved only a small fine; while the order of the punishing authority does not state that fact in express terms it must be inferred that the

authorities considered that the conduct of a lottery in contravention of the Indian Penal ''Code was a serious misconduct apart from the question

whether the subordinate gained pecuniary benefit thereby and that it provided good and sufficient cause for imposing penalty on the subordinate

concerned. That the existence of good and sufficient reason for imposing a punishment in the case of disciplinary matters against a Government

servant as provided in rule 8 of the Madras Civil Services (Classification, Control and Appeal) Rules, is the real criterion on such cause has been

laid down by a Bench of this Court in P.S. Kuppuswami Vs. The State of Madras, . Further, it may be pointed out that in the judgment of the

District Magistrate in appeal he has deliberately reduced the sentence of fine, stating as one of the reasons therefore the liklihood that the

conviction would entail the petitioner''s dismissal from service. It will not be proper now for the petitioner in such circumstances to rely upon the

reduction of the sentence of fine by the District Magistrate in appeal, for holding that his conduct which led to the conviction did not amount to

good and sufficient reason for disciplinary action under rule 8 of the Madras Civil Services (Classification, Control and Appeal) Rules.

Learned Counsel for the petitioner Sri K. K. Venugopal next argued that the?offence in this case is purely technical without mens rea. There is

no moral delinquency or moral turpitude involved in the commission of the offences; in such circumstances it will be wholly inappropriate to

proceed-against the petitioner depart-mentally. He also referred to two circumstances in this connection. One is that in certain Standing Orders

evolved for the employees of the State Electricity Board subsequently in October, 1965, two Standing Orders have been framed, one dealing with

conviction for offences involving moral turpitude (Standing Order No. 24) and another dealing with participation in a lottery (Standing Order No.

33). This, according to the learned Counsel, would show that it could not have been the intention, even before the aforesaid amendment to the

Standing Orders, to impose departmental punishment on an employee of the Electricity Board for an offence?which did not involve moral

turpitude.

The learned Counsel also referred me to certain observations found in authorities on criminal law, as well as in prior decisions on the question of

moral turpitude in cases of conviction for criminal offences. First of all the following observations in ''A Text Book of Jurisprudence by George

Whitecross Paton '' Third Edition at page 318 was referred to:

In considering the material elements of crime, Dr. Allen stresses intrinsic wrongfulness and social expediency as two of the most important factors

which have led to the designation of certain conduct as criminal. Jerome Hall finds the distinguishing mark of a crime in social harm involving moral

culpability. This is a factor which cannot be disregarded in studying the evolution of the criminal law, but it is not true that this is the only point to be

considered. Cutting across this notion of intrinsic wrongfulness are what have been called the '' Public welfare'' offences, which involve no moral

delinquency, but are intended to secure the effective regulation of conduct in the public interest. Thus no moral slur is cast on a person who is

convicted of driving a motor-car without showing a rear light, nor is it necessary to prove that the defendant knew that his lamp was not a light.

There are also decisions dealing with laws setting down disqualification of candidates. for election to Panchayat Boards under the Panchayat Act,

on the ground of conviction for offences involving moral turpitude or moral delinquency. In this category fall decisions in Chelladurai and Others

Vs. Sornam alias Eswaramurthy and Others, , (by Anantanarayanan, J., as he then was) and Karuppiah v. Inspector of Panchayat and Collector of

Ramanathapuram (1965) 2 M.L.J. 137, (by Venkatadri,, J.). In the former decision at page 57 there is the following observation ::

In my view, applying the approach of negative exclusion, which may be fruitful in such cases, it is clear enough that all technical and formal

offences, and offences not involving mens rea would be automatically excluded. Next, an offence like rash and negligent act causing the death of a

person, may be presumably excluded, for, though rashness and negligence are states of mind, they do not involve a guilty intention, and are not

states of mind per se transgressing the moral law. But where such an offence as criminal conspiracy, or waging war against an established

Government (Government of India) (section 121, Indian. Penal Code) is committed, it is very difficult to accept, the validity of the decision that

''moral delinquency'' is not involved, because the notice is not personal but political. After a careful consideration of this aspect, I am inclined to feel

that any grave criminal offence, which involves an element of guilty knowledge, and which thus transgresses the majesty of the law of crimes, will

necessarily involve also an element of ''moral delinquency'' because of its anti-social content. To hold otherwise would admit in the application of

the definition, a chaos of relativity.

But these decisions arose in the context of the provisions of the Panchayats Act where a disqualification had been specifically defined as arising out

of conviction, for offences involving moral delinquency or moral turpitude. There is no such definition of the disqualification found in rule 8 of the

Civil Services (Classification and. Control) Rules which, as already mentioned, gives power to the punishing authority to exercise his power of

punishment for good and sufficient reasons. Rule 17 (c) (i) of the Rules is a rule of procedure; it does not lay down any restriction that it shall apply

only in case of offences involving moral turpitude or moral delinquency. What is therefore important to bear in mind, while, dealing with a case of

punishment of a departmental subordinate governed by the Civil Services (Classification and Control) Rules under rule 8, is to find out whether the

procedure under Rule 17 (c) (i) has been correctly followed, and whether the test of good and sufficient reason is satisfied. The approach of this

Court will not be from the point of view of an appellate authority sitting in judgment, as that is not the scope of the function. of this Court while

exercising powers under Article 226 of the Constitution. But the jurisdiction of this Court, while exercising powers of control under Article 226 of

the Constitution, will be to determine whether the punishing authority in relying on the conviction had no material at all for applying the good and

sufficient reason test and whether circumstances wholly extraneous to the matter in issue, namely, the conduct of the subordinate concerned have

been taken into account. Mala fides on the part of the punishing authority will also be another criterion in such cases.

Before taking up the consideration of the case from the aforesaid points of view, I will briefly extract certain remarks found in Gour''s Penal Law

of India, which will be relevant in the context of the attack made by the petitioner''s learned Counsel that the offence u/s 294-A, Indian Penal

Code, is purely technical and that no reasonable employer would construe it as a ground of misconduct on the part of a Subordinate. It is urged

that a conviction u/s 294-A, Indian Penal Code, is similar to convictions for routine traffic offence under this M.V. Code, offences under the City

Municipal Act, for failure to take licences from the Corporation and the like. It is urged that no sensible person would treat such convictions as

anything more than technical violations of the law and not as offences involving misconduct justifying drastic disciplinary action under the relevant

service rules.

In the commentary in Gour''s Penal Law of India, 8th edition u/s 294-A at page 1756 it is observed:

In a lottery, the participants merely buy a chance, the happening of which is wholly beyond their control. The mischief of gambling affects only the

actual players. As such, it is comparatively limited. That done by a lottery is. widespread.

The law reprobates gambling as well as lottery, because they both promote the circulation of money by chance. And such circulation is both unjust

and unequal, because its course is solely determined by chance. The law reprehends gambling and lottery not only because the course of money

which is the fruit of labour is determined by chance, but also because they encourage the squandering of wealth and thus lead to incalculable public

misery. They are moreover, opposed to honest labour and thrift upon which the happiness of society depends. It is needless to add that

authorisation of a lottery by Government does not legalise it; it merely exempts the person authorised from punishment under this section. For all

other purposes, it is still an illegal transaction subject to Section 30 and other provisions of the Indian Contract Act.

If we bear the abovesaid observations in mind, even from the point of view of the moral turpitude test, the contravention of Section 294-A does

not stand in the same footing as technical offences, like contravention of traffic regulations or the licensing regulations which no sensible person will

take into account for imposing a departmental punishment. Conduct of an unlicensed lottery appears to me a more serious type of offence, than

such petty contraventions, and a subordinate who takes the risk by participating in an illegal lottery, as is in this case must be considered to have

committed a much graver offence. The true principle in such cases appears to be the one laid down in Pears v. Foster (1886) L.R. 17 Q.B.D.

536, where Lord Esher M. R. observed : ''

The rule of law is, that where a person has entered into the position of servant if he does anything incompatible with the due or faithful discharge of

his duty to his master; the latter has right to dismiss him. The relation of master and servant implies necessarily that the servant shall be in a position

to perform his duty duly and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss him....What circumstances

will put a servant into the position of not being able to perform, in a due manner his duties or of not being able to perform his duty in a faithful

manner it is impossible to enumerate Innumerable circumstances have actually occurred which fall within that-pro-position, and innumerable other

circumstances which never have vet occurred, will occur, which also will fall within the proposition But if a servant is guilty of such a crime outside

his service as to make it unsafe for a master to keep him in his employ, the servant may be dismissed by his master; and if the servant''s conduct is

so grossly immoral that all reasonable men would say that he cannot be trusted, the master may dismiss him.

In the same case, Lord Justice Lopes observed:

If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate

dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is

conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master.

This decision has been followed by the Bombay High Court in Madha Singh v. State of Bombay AIR 1960 Bom. 285.

For the purpose of the present case, I will in particular lay stress on the portion of the remarks of Lord Justice Lopes:

That misconduct, according to my view, need not be misconduct in the carrying on of the service or business. It is sufficient if it is conduct which is

prejudicial or is likely to be prejudicial to the interests or to the reputation of the master.

In the present case, the conduct of the petitioner is certainly conduct which is prejudicial to the reputation of the Electricity Board. In fact, the

drawing of the lottery in this case was held in the Town Hall of Vellore with wide publicity. It came to the knowledge of the authorities that the

lottery conducted in this fashion publicly was an unlicensed lottery. It would have gravely affected the reputation of the employer, the Electricity

Board, if it has allowed one of its servants, who had contravened the criminal law in this fashion, to go unpunished.

Reference was made finally by the learned Counsel for the petitioner to certain observations of a Bench of this Court in Embaru v. Chairman,

Madras Port Trust (1964) 2 M.L.J. 349 : (1964) M.L.J. 579 : ILR (1964) 1 Mad. 589, where the Port Trust dealt with one of its servants under

a Standing Order which was similar in its operation to Rule 17 (c) (i) of the Madras Civil Services (Classification, Control and Appeal) Rules,

dispensing with a regular enquiry for dealing with a conduct which led to a criminal conviction. Relying upon the argument that strictly speaking in

such a case a second opportunity to show cause against the proposed punishment after the punishing authority had provisionally come to the

conclusion, which is provided both in Rules 17 (a) (b) and (c) as well as in Article 311 of the Constitution, need not be given when the

departmental action is initiated on the basis of the conduct which led to the conviction the Bench observed:

Although such an opportunity was not given, there is nothing in the record to show that the Chairman of the Port Trust did not take into

consideration all the relevant factors before deciding on the dismissal of the workman. That authority might have been no doubt well advised in a

case coming u/s 17 (3) of the Standing Orders (similar to Rule 17 (c) (i) of the Madras Civil Services (Classification, Control and Appeal) Rules, if

he were to give an opportunity to the workman concerned to show why the punishment of dismissal should not be inflicted upon him. But assuming

that it erred in not so doing it is very doubtful whether the jurisdiction of this Court under Article 226 of the Constitution could properly be

invoked.

But, as I mentioned earlier in this judgment, the record of enquiry in this case shows that in fact a second opportunity was given to the petitioner by

the punishing authority to show against the punishment in a subsequent memo.

For the abovesaid reasons, I am of the opinion that there is no merit in this writ petition, which is dismissed. No order as to costs.