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Judgment
A.P. Shah, C.J.—Admit. Mr. N.G.R. Prasad, learned Counsel for the second respondent waives service. By consent, the writ appeal is
taken up for disposal.
The appellant was an employee of the Indian Airlines. A charge memo dated 1.10.1991 was issued to the appellant, with an allegation that the
appellant had collected 41,000 Malaysian Ringitts from one Sudalaimuthu, a Malaysian national, on a promise that the appellant will get an
admission in Medical College in Tamil Nadu for the daughter of Sudalaimuthu, by name Bhuvaneswari. The appellant collected the said amount,
but could not provide the medical admission to the complainant''s daughter! Thereafter, a complaint was received by the Indian Airlines and the
Management treated it as a misconduct as envisaged in Clause Nos. 16(8) and 16(39) of Standing Orders (Regulations) Concerning Discipline
and Appeals, 1961 of the Indian Airlines Corporation, for which disciplinary proceedings were initiated against the appellant.
Aggrieved by the same, the appellant approached this Court and filed Writ Petition No. 9122 of 1992, challenging the charge memo. It was
contended that already C.B.I, investigation was initiated on the same facts and therefore, departmental action is not valid. The said writ petition
was dismissed on 10.7.1992, observing that there is no bar in proceeding with the enquiry proceedings. Thereafter, the case investigated by the
C.B.I., Chennai was transferred to the Directorate of Enforcement, Chennai, as the alleged transaction involves foreign exchange. Again, the
petitioner challenged the enquiry proceedings through Writ Petition No. 10046 of 1995 on the ground that since the said case was transferred to
the Enforcement Directorate, the Management should not proceed with the departmental proceedings till the finality of the criminal proceedings.
Initially, the enquiry was stayed for a while and thereafter, the writ petition was dismissed. A writ appeal was preferred and the same was also
dismissed. Thereafter, the enquiry proceedings proceeded. The complainant Sudalaimuthu and his close relative, one T.S. Arumugam were
examined as witnesses on behalf of the Management and Exs.M.E.1 to M.E.24 were marked. On behalf of the appellant, his wife A. Devasena
and his daughter, P. Jansi Rama Bai were examined as D.W.1 and D.W.2 and Exs.W.1 to W.6 were marked. The appellant was not examined as
witness.
The Enquiry Officer found that in the month of April 1987, the appellant along with his family visited Malaysia and during their stay at the
residence of the complainant Sudalaimuthu, the appellant represented to him that in order to secure admission for the complainant''s daughter in a
Medical College in Tamil Nadu, a sum of 10,000 Malaysian Ringitts in cash was required initially. The appellant and his wife convinced the
complainant that they are capable of obtaining admission for the complainant''s daughter in a Medical College in Tamil Nadu. The complainant paid
a sum of 10,000 Malaysian Ringitts in cash to the appellant and his wife. The appellant and his wife visited Malaysia for the second time towards
the end of December, 1987 and again on the promise of securing admission for the complainant''s daughter in the Medical College, they extracted
a further amount of 20,000 Malaysian Ringitts in cash from the complainant. Towards the end of October 1988, the appellant visited Malaysia
alone and showed a document purportedly issued by the Indian Government offering admission to the complainant''s daughter in Stanley Medical
College, Chennai to pursue her M.B.B.S. Course and extracted a further sum of 11,000 Malaysian Ringitts. This document turned out to be a
totally fabricated one. It appears that on 23.1.1989, the appellant addressed a letter to the complainant that the admission letter for his daughter
would reach him by a separate brown cover. The complainant received a brown cover, but it did not contain any document. Thereafter, the
complainant made enquiries and it was revealed that the appellant has cheated him. Immediately, the complainant came to Madras in February,
1989 and made enquiries and finally learned that the appellant has completely deceived him and misappropriated the amount given to him.
Thereupon, the complainant demanded the appellant to pay the money given by him, but the appellant did not return the money to the complainant.
On the basis of those findings, the Enquiry Officer held the appellant guilty of misconduct within the meaning of Clauses 16(8) and 16(39) of the
Standing Orders (Regulations) Concerning Discipline and Appeals.
Subsequently, the disciplinary authority issued a show cause notice suggesting the punishment of removal of the appellant from service. The
appellant submitted a detailed explanation refusing the charges framed against him and stated that the finding of the Enquiry Officer is perverse.
Thereafter, an order of dismissal was passed. The appellant preferred an appeal. In the meanwhile, the Management preferred an application u/s
33(2) of the Industrial Disputes Act, 1947 before the National Industrial Tribunal seeking approval of the order of dismissal of the appellant. The
appellant appeared before the Tribunal and filed his objections. The Tribunal approved the order of dismissal vide its judgment and order dated
8.4.1999. Thereafter, an industrial dispute was raised by the appellant, which was adjudicated by the Labour Court and an award was passed
holding that the termination of the service of the appellant was justified. The legality and correctness of the award was challenged by the appellant
before the learned single Judge in the present writ petition, which came to be dismissed by the learned single Judge vide order dated 9.1.2007.
Mr. N. Subramaniam, learned Counsel for the appellant strenuously contended that the allegations made in the charge memo against the
appellant are of personal nature and there is no causal connection between the alleged misconduct of the appellant and his employment with the
Management, and in the light of the law declared by the Supreme Court in Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court,
Meerut and Others, , the entire disciplinary proceedings and the consequential order of dismissal of the appellant were void ab initio and liable to
be sat aside. The learned Counsel urged that the appellant, in his first reply to the charges itself, had raised the objection that the allegation
contained in the charge memo issued against him was totally a private dispute between himself and the complainant and in no way related to his
employment with the Management and therefore, the Management has no authority or jurisdiction to enquire into the same. This objection has not
at all been considered by the Labour Court or the learned single Judge. In support of his submission, learned Counsel also placed reliance on the
decision of the Supreme Court in A.L. Kalra Vs. Project and Equipment Corporation of India Ltd., .
We are unable to accede to the submission made by the learned Counsel for the appellant. In Kalra''s case (supra), the misconduct alleged
against the delinquent was trivial. The report against him was found to be only on ipse dixit. It was held that Rule 4(1)(i) did not specify that its
violation will constitute misconduct, it was opined that where misconduct when proved entails penal consequences, it is obligatory on the part of
the employer to specify and if necessary, to define it with precision and accuracy so that any ex post facto interpretation of some incident may not
be camouflaged as misconduct, in that view of the matter, it was concluded as hereunder: (S.C.C. p.338, para 31)
To sum up the order of removal passed by disciplinary authority is illegal and invalid for the reasons - (i) that the action is thoroughly arbitrary and
is violative of Article 14, (ii) that the alleged misconduct does not constitute misconduct within the 1975 Rules, (iii) that the inquiry officer himself
found that punishment was already imposed for the alleged misconduct by withholding the salary and the appellant could not be exposed to double
jeopardy, and (iv) that the findings of the inquiry officer are unsupported by reasons and the order of the disciplinary authority as well as the
Appellate Authority suffer from the same vice. Therefore, the order of removal from service as well as the appellate order are quashed and set
aside.
The decision in Glaxo Lab''s case (supra) was also rendered in the fact-situation obtaining therein. In that case, the question was whether the
Management can take disciplinary action against the workman for the acts of misconduct said to have been committed outside the premises of the
establishment. The Court, upon construction of Clause 10 of the Standing Orders, held that the various acts of misconduct set out therein would be
misconduct for the purpose of S.O.22 punishable under S.O.23, if committed within the premises of the establishment or in the vicinity thereof and
rejected the contention that some other act of misconduct which would per se be an act of misconduct, though not enumerated in the Standing
Orders, can still be punished.
In a recent decision in Chairman and M.D., Bharat Pet. Corpn. Ltd. and Others Vs. T.K. Raju, , a two Judge Bench of the Supreme Court
pointed out that the decision in Kalra''s case does not lay down any inflexible rule. The Bench observed:
On more than one occasion, different courts have taken pains to explain that Kalra does not lay down any inflexible rule. (See Probodh Komar
Bhowmick v. University of Calcutta (1994) 2 CLJ. 456, Tara Chand v. Union of India C.W.P. No. 5552 of 2000 disposed of on 27.8.2002
(Del)], Secretary to Government and Others Vs. A.C.J. Britto, and Noratanmal Chouraria Vs. M.R. Murli and Another, .
In the present case, the relevant clauses of the Standing Orders (Regulations) Concerning Discipline and Appeals, 1961 of the Indian Airlines
Corporation read as follows:
Every employee of the Corporation shall at all times maintain absolute integrity and devotion to duty and conduct himself in a manner conducive
to the best interests, credit and prestige of the Corporation.
Without prejudice to the generality of the term ''misconduct'', it shall be deemed to include the following acts of omission and commission:
...
8) Breach of any standing order or any law or rules applicable to the establishment.
...
39) Conduct in private life prejudicial to the reputation of the Corporation.
On the basis of the facts as found by the Enquiry Officer, we are of the view that the misconduct committed by the appellant would fall under
the aforesaid clauses, viz. Clause Nos. 16(8) and 16(39) of Standing Orders (Regulations) Concerning Discipline and Appeals, 1961. Having
regard to the exchange of correspondence produced by the Management, it has been established that the appellant had received money from the
complainant and that the same was in connection with the admission of his daughter in a Medical College in India. The action of the appellant in
receiving the foreign exchange from a foreign national was in violation of the law applicable to the establishment. The conduct of the appellant has
clearly brought disrepute to the organization as the appellant was known to the complainant, who is a foreign national, more as an employee of
Indian Airlines. It is pertinent to note that the appellant had used the passage facility available to him as an Indian Airlines employee for his trips
abroad and got the money from a foreign national, in violation of the law relating to foreign exchange. Under Clause No. 1 of the Standing Orders,
every employee of the Corporation is expected to maintain absolute integrity and devotion to duty and conduct himself in a manner conducive to
the best interests, credit and prestige of the Corporation. We are satisfied that the conduct of the appellant has had a prejudicial effect to the
reputation of the Corporation.
Learned Counsel for the appellant, however, contended that the appellant was a factory worker and he worked as a Technical Assistant in the
Indian Airlines Engineering Hangar at Madras, which was registered as a factory and therefore, Clause Nos. 16(8) and 16(39) of the Standing
Orders (Regulations) Concerning Discipline and Appeals are not applicable to him. Learned Counsel submitted that he has specifically raised this
contention before the learned single Judge, but it has not been considered in a proper perspective. We find absolutely no substance in the
submission of the learned Counsel. In the earlier writ petition, viz. W.P. No. 9122 of 1992, the appellant came to the Court with a specific case
that he was governed by Clause Nos. 16(8) and 16(39) of the Standing Orders (Regulations) Concerning Discipline and Appeals. At no point of
time during the enquiry he raised objection to the maintainability of the enquiry proceedings on the ground of non-applicability of the Standing
Orders. In any event, this contention was expressly rejected by the National Industrial Tribunal in the approval proceedings and the order of the
Tribunal has attained finality.
No other contention has been raised by the learned Counsel for the appellant. The writ appeal is, therefore, dismissed. No costs.
Consequently, M.P. Nos. 1 and 2 of 2007 are closed.