N.G. Kotle vs Ahmedabad Municipal Corporation and Another

R.A. Mehta, J.—The appellant was a departmental enquiry, he has been found Chemist in the respondent Ahmedabad guilty of misconduct and the disciplinary Municipal Corporation and after a authority has imposed the punishment of termination from services. The findings of guilt as well as penalty have been confirmed by the appellate authority and the writ petition has been dismissed by the learned single Judge. Hence the appellant has preferred this appeal.

The charge against the petitioner was that while being a responsible employee of the Public Health Laboratory of the Corporation, he had deposed in the Criminal Court as an expert defence witness in order to help the accused by deposing that butter milk is milk. The Criminal Court did not accept the expert opinion of the appellant and convicted and sentenced the accused. In the appeal before this Sessions Court, the learned Sessions Judge confirmed the conviction and sentence passed by the learned Magistrate and while doing so, passed strictures against the appellant. As a result thereof, the disciplinary enquiry was started against the appellant. The appellant filed Misc. Criminal Application No. 889 of 1982 for expunging the strictures passed against him and the learned single Judge of this Court, by his judgment dated 24th August 1981, expunged certain observations in paras 13 and 18 of the judgment of the learned Sessions Judge. However, the following observations were retained:

I do not accept a word of what Niranjan has said. I hope the Municipal Officers will take due notice of the man''s conduct.

In the disciplinary proceedings, the appellant has not challenged the legality and validity of the departmental enquiry and he does not dispute that he was given adequate opportunity of being heard.

However, the impugned order has been challenged on the following grounds:

(i) That there is delay of 4 1/2 years in 40 initiation of the enquiry.

(ii) It is no misconduct to give evidence in Court.

(iii) Evidence given in the Court by the appellant is supported by various authorities.

(iv) If the appellant has given any false evidence, it is for the Court to take proceedings for perjury and it is not for the employer to take disciplinary proceedings; and

(v) The punishment is excessive and arbitrary because in case of another Chemist and Public Analyst Mr. Vaghela, the employer had taken lenient view and imposed lesser punishment.

The gravamen of the charge is that the appellant had deliberately and with a view to improperly help the accused given evidence that butter milk is milk and there is no standard prescribed under the Prevention of Food Adulteration Act for butter milk. It is also stated that there would be sourness in butter milk after long time. However, he did not know as to when such sourness would be there. It is to be remembered that the appellant is M.Sc. with Chemistry and working as a Chemist in Public Health Laboratory of the Corporation and engaged in analysis of food samples with a view to find out adulteration.

Appendix-B to Prevention of Food Adulteration Rules, 1955 deals with milk and milk products and the definition of milk is given in A. 11.01.01. It defines milk as under:

Milk is the secretion derived from complete milking of healthy milch animals. It shall be free from colostrum. Milk of different classes and of different designations shall conform to the standards laid in table below Item A. 11.01.11.

The dictionary meaning of butter is "an oily substance obtained from cream by churning" and the meaning of butter milk is the liquid left after churning cream. Thus by churning, butter and butter milk are separated and neither of them is milk. Neither the statutory definition nor dictionary definition nor ordinary meaning of milk can include butter milk in any sense whatsoever. Butter milk is merely a dairy product. It cannot be said to be milk in any sense. However, this appellant who is said to be an expert in the subject and dealing with the same had deposed on oath that butter milk can be called milk and there is no standard prescribed for butter milk. This was clearly with a view to improperly help the accused in the criminal trial. It is very curious that the accused selected the appellant as a defence witness. The appellant was working in the laboratory of the Corporation which had issued a certificate to the effect that the milk sold by the accused was adulterated and it was on that basis that the accused was prosecuted and the appellant who was working in the same laboratory surprisingly came to be selected by the accused to be examined as a defence witness and he deposed to the above effect clearly to help the accused by giving false evidence. Fortunately, neither the trial Court nor the Sessions Court believed the word and so called expert opinion of the appellant. However, the fact remains that the appellant gave opinion which was neither an expert opinion nor the opinion consistent with common sense or with dictionary meaning and it was clearly the opinion convenient to the accused with a view to get him acquitted.

6-A. The contention that the expert opinion of the appellant was supported by various authorities is not borne out from any record or any text. No such text or opinion is shown to us nor was it shown to the learned single Judge. The statutory as well as dictionary meaning are clearly contrary to what the appellant has contended especially in the context of the Prevention of Food Adulteration Act and Rules. It cannot be accepted that merely because under the head of ''dairy product'', milk and butter milk are included, butter milk can be said to be a kind of milk. All dairy products or all milk products cannot be said to be milk and it does not require any long argument or even expert opinion to come to such conclusion more particularly in view of the statutory definition in Appendix B, Therefore, it is clear that the contention of the appellant that his expert opinion is supported by text and several authorities has no basis whatsoever. His so called expert opinion was neither correct nor proper and was contrary to the statutory definition and ordinary meaning of the word ''milk'' and, therefore, it has to be inferred that such an opinion was given with a view to improperly help the accused.

As far as the contention that it is no misconduct to give evidence in Court is concerned, it is the duty of every citizen to assist the Court in administration of justice and to give evidence wherever called upon and it is no misconduct to give evidence in the Court. However, when the evidence is given by an employee like a Chemist in the Public Health Department against the very department and that evidence is found to be deliberately false and improper with a view to destroy the prosecution filed by the employer against the accused, certainly it is a misconduct, and the employer is entitled to take disciplinary proceedings and impose penalty. The penalty is not imposed for giving evidence in Court, but it is imposed for improperly and deliberately trying to destroy the prosecution launched by the Corporation by an employee whose duty is to enforce the law of Prevention of Food Adulteration and to see that the culprits of food adulteration are properly dealt with and punished in accordance with law. Therefore, there is no substance in the argument that the conduct of the appellant in giving evidence of this nature in Court is no misconduct.

The next contention of the appellant is that only the Criminal Court could have taken action against the appellant for perjury and the employer was not entitled to terminate the services of the appellant on such a charge. It is true that the Criminal Court could have and should have taken action for perjury against the appellant in the facts and circumstances of the present case. However, that does not mean that the employer cannot take action against such employee and that the Corporation is bound to continue such a person in service merely because the Court had failed to take action. There is no such bar against an employer taking action against its employee for misconduct after an enquiry properly held and charge is properly proved.

It was submitted that there was unduly long delay of 4 1/2 years in initiation of the enquiry. It is submitted that the evidence was given in 1977 and the proceedings were started by issuing show cause notice in 1981 and that there was no explanation for such delay. It is to be noted that in the present case, the enquiry has been validly and properly held and it has resulted into an order of punishment and confirmation by the appellate authority. Moreover, no prejudice whatsoever has been shown. Therefore, there is no case for any interference.

Lastly, it was contended that the punishment is excessive and arbitrary. It is submitted that one Mr. Vaghela who was a Public Analyst and Head of the Department was involved in far serious misconduct and even after proof of such misconduct, he was let off with very light punishment of stoppage of two increments and he was continued in service as Chemist. By citing this incident, it has been submitted that imposing extreme penalty of termination from service on the appellant is arbitrary and discriminatory. It is to be noted that the punishment has to be commensurate and proportionate with the misconduct. Misconduct of the appellant is such that he cannot be continued in public service. It cannot be said to be in any way excessive or disproportionate. In case of such gross misconduct, termination is the only proper punishment. If such punishment is proper and commensurate with the guilt and misconduct of the appellant, how can it be discriminatory or arbitrary? Merely because in a given case, some lesser punishment has been given, it cannot be a precedent for all other cases. In a given case, such lesser punishment may be due to the facts and circumstances of the case justifying it or it may not be justified. However, merely because in some given case. unjustifiably lesser punishment has been given, it cannot be made a ground for argument of discrimination or arbitrariness. If the argument of the appellant is right, the punishment awarded in the other case is arbitrary and unduly lenient. However, that does not mean that such arbitrary or unduly lenient view is to be approved by the Court and extended to all cases, and so as to regularise, extend and perpetuate the arbitrariness that would lead to letting off all guilty people merely because in some given case, an unjustifiable view has been taken. The learned single Judge has rightly observed that if in a given case (Vaghela''s case) a light punishment was imposed inspite of serious charges, it might become a case of revision of punishment in that case. We are clearly of the view that an improper or arbitrary order of lenient punishment in a given case cannot be made the basis for an argument for lesser punishment in the present case unless the punishment is shown to be disproportionate to the misconduct. In the present case, the punishment is not excessive and is commensurate with the guilt and misconduct of the appellant.

The learned Counsel for the appellant has relied on the judgment dated 21st March 1984 in Special Civil Application No. 1060 of 1984 delivered by learned single Judge in the case of the appellant whereby the petitioner i.e. appellant herein was directed to present the appeal memo to the Standing Committee highlighting the treatment given to Mr. Vaghela by the General Board. The observations of the learned single Judge made in that context were merely in the form of recommendation in general and were not binding to the appellate authority and the appellate authority was free to take appropriate decision in accordance with law and such decision is not shown to be in any way illegal or erroneous.

These were the only contentions raised and all of them fail. Hence the appeal is dismissed with cost.