Supreme Court of India
AJIT KUMAR NAGversusGENERAL MANAGER, INDIAN OIL CORPORATION LTD. AND ORS.
- Citation
- 2005 INSC 425
- Decided
- 19 September 2005
- Disposal
- Dismissed
- Bench
- S N VARIAVA
Holding
Clause (vi) of Standing Order 20 is valid, intra‑vires and its exercise in the present case is not arbitrary or violative of Article 14.
Summary
The appellant, a senior officer of Indian Oil Corporation (IOC), was dismissed by the General Manager under clause (vi) of Standing Order 20 after an incident at the refinery hospital where he was alleged to have led a mob and assaulted the Chief Medical Officer. The dismissal was effected without a disciplinary enquiry, and the appellant challenged the validity of the clause on grounds of violation of natural justice, Article 14, and the applicability of Article 311. The Supreme Court examined whether the clause, which permits dismissal on the General Manager’s satisfaction, is arbitrary or ultra‑vires, and whether the appellant’s acquittal in a criminal trial bars disciplinary action. The Court held that the clause contains sufficient safeguards, is intra‑vires, and its exercise in the facts was not unreasonable; it also affirmed that Article 311 does not apply to corporate employees. Consequently, both the appeal and the writ petition were dismissed.
Issues considered
- Whether clause (vi) of Standing Order 20, allowing dismissal without enquiry, violates Article 14 and the principles of natural justice.
- Whether Article 311 of the Constitution applies to employees of a public sector corporation such as Indian Oil Corporation.
- Whether the General Manager’s exercise of power under clause (vi) is arbitrary, unreasonable or ultra vires.
- Whether the appellant’s acquittal in the criminal proceedings precludes disciplinary dismissal.
- Whether the validity of clause (vi) can be challenged despite not being raised before the High Court (res judicata).
Legislation cited
- Constitution of Indias. Article 12, s. Article 136, s. Article 14, s. Article 226, s. Article 227, s. Article 31(2), s. Article 32
- Indian Contract Act, 1872s. Section 23
- Indian Penal Code, 1860s. Section 147, s. Section 149, s. Section 323, s. Section 341, s. Section 506
Subjects
service lawdismissalnatural justicestanding ordersArticle 14Article 311corporate employeedisciplinary actionconstitutional validitydue process
Judgment
l
i
A AJIT KUMAR NAG
v.
GENERAL MANAGER, INDIAN OIL CORPORATION LTD.
AND ORS.
SEPTEMBER 19, 2005
B
[S.N. VARIAVA, C.K. THAKKER AND TARUN CHATTERJEE, JJ.]
Service Law:
C Dismissal-Principles of natural Justice-Certified Standing Orders of
Indian Oil Corporation-Clause (vi) ofStanding Order 20-Validity-Appellant
was a senior officer at the Haldia Refinery of JGC-Allegation that appellant
led by a bunch of hooligans visited the Refinery Hospital and assaulted the
CMG-General Manager of the Corporation dismissed him without holding
D any inquiry exercising power under clause (vi) of Standing Order 20-Writ
petition challenging the dismissal order dismissed by the High Court-Filed
SLP to this Court-Also filed a writ petition under Article 32 challenging the
constitutional validity of clause (vi) of Standing Order 20 as being violative
of natural justice and Article I 4-Held, since sufficient safeguards have been
provided in the Standing Orders, the same cannot be held arbitrary,
E unreasonable, or ultra vires Article I 4 of the Constitution.
Services-Dismissal without enquiry-Standing Order 20(vi)-Validity
of action taken-Appellant found to have led a bunch of hooligans to Haldia
Refinery Hospital and assaulting and abusing the Chief Medical Officer thereby
creating terror-General Manager on going through the complaints ofvarious
p persons, satisfied that appellant indulged in the acts of violence without any
valid reason or compelling circumstances or provocation-General Manager
dispensed with the enquiry under Standing Order 20 (iii) and exercised power
under Standing Order (vi) and passed the dismissal order-Acts of misconduct
were found to be very grave and serious by the Appellate Authority also-
Held, exercise of power under Standing Order 20 (vi) in the circumstances,
G cannot be held to be arbitrary, unreasonable or mala fide and does not
require interference in the exercise of power ofjudicial review by the Court.
Standing Order 20 (vi)-Constitutional validity-Article 14-Standing
Order 20 clause (vi) permits dismissal without enquiry on satisfaction of the
General Manager about expediency of not keeping a workman in service-
I-1 314
NIT KUMAR NAGv. GEN. MAN., INDIAN OIL CORPN. LTD. 3 J5
Plea that it is a drastic provision which totally excludes application of natural A
justice that too on the satisfaction of General Manager-Held, a provision
cannot be declared arbitrary, ultra vires or unconstitutional merely because
there is possibility of abuse or misuse of such power.
Article 31 I-Civil servant-Employees of a corporation-Held, cannot
be said to be holding a civil post under the Union or a State and not entitled B
to protection of Article 311.
Disciplinary action-Appellant acquitted of criminal charges by the
Court-Held, the said order would not debar the employer from taking action
in accordance with Rules and Regulations in force.
c
Res judicata-Applicability-Appel/ant had not challenged the vires of
clause (vij of Standing Order 20 before the High Court-Held, could still be
permitted to argue the case on the vires or validity of clause (vij.
Appellant dismissed from service without enquiry by the General D
Manager in exercise of power under clause (vi) of Standing Order 20. The
Appellate Authority also found the acts of misconduct very grave and
serious. The High Court dismissed the writ petition challenging the
dismissal order. Hence, appeal to this court. Appellant also filed a writ
petition under Article 32 challenging the constitutional validity of clause
W E
Appellant, inter alia, contended that even though the provisions of
Article 311 do not apply to him being an employee of the corporation, the
general principles behind it would apply to the employees of the
Corporation also. He also submitted that the Corporation being the State
within the meaning of Article 12, Article 14 would apply to it and an order F
passed arbitrary and without complying with the principles of natural
justice must be held null and void. It was also submitted that clause (vi)
of Standing Order 20 is arbitrary, irrational and unreasonable.
Dismissing the appeal and the petition, the Court
G
HELD : 1. In view of the various pronouncements of the Court, there
is no doubt that the respondent Corporation is right in submitting that
the appellant cannot invoke Article 311 by describing him as holding 'civil
post' under the Union or a State. Article 311 of the Constitution, therefore,
has no application to facts of the case. [325-F-G[
H
316 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A Dr. S.L. Agarwal v. General Manager, Hindustan Steel Limited
(Hindustan Steel Limited/), [1970) 3 SCR 363, relied on.
Workmen of Hindustan Steel Limited v. Hindustan Steel Limited
(Hindustan Steel Limited//), [1984] Supp SCC 554, disapproved.
B Hari Pada Khan v. Union of India, [1996] l SCC 536, distinguished.
2.1. It is well settled that a provision which is otherwise legal, valid
and intra vires cannot be declared unconstitutional or ultra vires merely
on the ground that there is possibility of abuse or misuse of such power.
If the provision is legal and valid, it will remain in the statute book.
C Conversely if the provision is arbitrary, ultra vires or unconstitutional, it
has to be declared as such notwithstanding the laudable object underlying
it. (332-G-H; 333-AJ
2.2. General Manager is the highest administrative head of the
Corporation. So it cannot be contended that the power has been conferred
D on a petty officer of the Corporation. The Court is unable to uphold the
contention that Clause (vi) of Standing Order 20 confers blanket or
uncanalised power on the General Manager. In the opinion of Court,
sufficient guidelines and safeguards have been provided in the Standing
Orders, themselves, such as (i) the power is conferred on the highest
administrative head of the Corporation; (ii) eventualities have been
E specifically and expressly stated in Clause (vi) of Standing Order 20; (iii)
satisfaction of the General Manager that such an eventually has arisen;
(vi) recording of reasons in writing; and (v) right of appeal against the
decision of the General Manager. Such a provision cannot be held
arbitrary or unreasonable, violative of Article 14 of the Constitution.
F [332-C-D-E-F]
2.3. Since sufficient safeguards have been provided in the Standing
Orders and action taken by the General Manager under Standing Order
20(vi) could be challenged in appeal under Standing Order 21 and in the
High Court under Article 226/227 and in this Court under Article 32/136
G of the Constitution, the same cannot be held arbitrary, unreasonable or
ultra vires Article 14 of the Constitution. If in a given case, there is abuse
or misuse of power, such action or order would be bad. It would, however
not make Standing Order 20(vi) ultra vires. In the facts and circumstances
of the present case the General Manager was satisfied that it was not in
the interest of the security of the refinery and the staff to continue the
H appellant in the employment of the Corporation and accordingly he had
AJIT KUMAR NAGv. GEN. MAN., INDIAN OIL CORPN. LTD. [THAKKER, J.] 3 J7
·dispensed with the enquiry under Standing Order 20 (iii) and exercised A
power under Standing Order 20(vi) and passed the dismissal order. In the
opinion of the Court such action can never be termed arbitrary, irrational
or unreasonable. [333-G-H; 334-A; 337-B-C-D]
Union ofIndia v. Tulsi Ram Patel, (1985] 3 SCC 398; A. Thanga/ Kunju
Musaliar v. M Venkatacha/am Potti and Anr., (1995] 2 SCR 1196; State of B
Rajasthan v. Union of India, [1977] 3 SCC 592; Sushi! Kumar v. Union of
India, [2005] 6 SCC 281 and Satyavir Singh v. Union of India, [1985] 4 SCC
252; relied on.
Central Inland Water Transport Corporation v. Brajo Nath Ganguly,
(1986] 3 SCC 156 and Delhi Transport Corporation v. Delhi Transport C
Corporation Mazdoor Congress, [1991) Supp 1 SCC 600, not applicable.
3. Principles of natural justice are not rigid or immutable and hence
they cannot be imprisoned in a straight jacket. They must yield to and
change with exigencies of situation. They must be confined within their D
limits and cannot be allowed to run wild. While interpreting legal
provisions, a court of law cannot be unmindful of hard realities of life. In
our opinion, the approach of the Court in dealing with such cases should
be pragmatic rather than pedantic, realistic rather than doctrinaire,
functional rather than formal and practical rather than 'precedential'.
(335-D-E-F] E
R v. University of Cambridge, (1723) 1Str557 and Charan Lal Sahu
v. Union of India, (Bhopal Gas Disaster), (1990] 1 SCC 613, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4544 of 2005.
F
From the Judgment and Order dated 6.2.2004 of the Calcutta High
Court in F.M.A. No. 3093 of 2002.
WITH
Writ Petition (Civil) No. 703 of 2004.
G
P.P. Rao, Raja Chatterjee and G.S. Chatterjee with him for the Appellant.
Ashok Grover, V.N. Koura and Ms. Paramjit Benipal for Mis. Arputham,
Aruna & Co. for the Respondents.
The Judgment of the Court was delivered by H
318 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A C.K. THAKKER, J. Civil Appeal No. 4544 of2005 is directed against·
the judgment and order passed by the Division Bench of the High Court of
Calcutta on February 6, 2004 in FMA No. 3093 of 2002 confirming the
judgment and order passed by the learned single Judge on July 9, 2002 in
Writ Petition No. 10667 (W) of 1999.
B Writ Petition No . .703 of 2004 is instituted by the petitioner in this
Court ur.der Article 32 of the Constitution challenging the validity of Clause
(vi) of Standing Order 20 of the Certified Standing Orders of the Indian Oil
Corporation Ltd.-respondent herein being arbitrary and against the principles
of natural justice.
c To appreciate the controversy raised in the matters, relevant facts may
be stated in brief.
The appellant in Civil Appeal No. 4544 of 2005 (petitioner in Writ
Petition No. 703 of 2004) joined the service of Indian Oil Corporation
D ('Corporation' for short) at Haldia Refinery in 1973. He was a senior officer
of the Corporation. He asserted that all throughout his service record was
good and satisfactory. He was sincere and efficient and has worked with
dedication. At several occasions, he received appreciation for his work. There
was no grievance or complaint by the authorities and he continued to be a
'devoted employee' of the Corporation. It was, no doubt, stated that in 1987,
E a charge sheet was issued against him but according to the appellant,
subsequently, the Corporation was satisfied on the explanation submitted by
the appellant that there was no substance in the allegations and the same was,
therefore, withdrawn. On I !th March, 1988, the appellant was promoted as
Operator 'A' Special Grade. It is the case of the appellant that his next door
F neighbour was one Mrs. Parul Jana, who was Sister-in-Charge in the Refinery
Hospital at Haldia. Parul Jana was treating the appellant as her brother. The
relationship between both the families was close and cordial and whenever
necessary, Parul Jana used to call the appellant as one of her family members.
Parul Jana suddenly developed heart problem in May, 1999. She was, therefore,
required to be admitted for treatment in Apollo Hospital, Madras. At late
G night hours on 5th May, 1999, two sons of Parul Jana rushed to the appellant
in grave anxiety and informed him that they failed to get positive information
about their mother and they were extremely worried. They, therefore, requested
the appellant to extend his helping hand to get proper information about the
health of their mother. The appellant advised them to go to the Refinery
H Hospital. Since the Refinery Hospital, Haldia had referred the case of Parul
NITKUMARNAGv. GEN.MAN.,INDIANOILCORPN. LTD. [THAKKER,J.) 319
Jana to Apollo Hospital, Madras, they would be able to get information from A
Haldia Hospital. Sons of Parul Jana requested the appellant to accompany
them to the hospital. The appellant being an employee and well-known for
his work in the hospital, could not refuse the reasonable request of two
persons and accordingly accompanied them. On reaching the hospital, they
found the office of the Chief Medical Officer, Dr. Bhattacharya, open and he B
was also available. According to the appellant, two sons of Parul Jana
approached Dr. Bhattacharya and requested him to give information about
their mother who was ailing and admitted to Apollo Hospital, Madras. Dr.
Bhattacharya said nothing in spite of repeated requests by sons of Parul Jana.
On the contrary, Dr. Bhattacharya without any reason, flared up and told
them that he was not supposed to provide information about Parul Jana to C
anyone and everyone. When sons of Parul Jana insisted to have information
from Dr. Bhattacharya, the latter told them that they should not worry about
their mother and in the event of her death, the Corporation would arrange to
bring the dead body from Apollo Hospital, Madras to Haldia and the body
would be handed over to the sons. According to the appellant, he continued D
to be a silent spectator all throughout. Sons of Parul Jana were seriously
shocked and disturbed on such statement being made and they raised objection
against the behaviour of Dr. Bhattacharya. Dr. Bhattacharya called several
persons in the hospital and directed them to throw all persons including the
appellant out of the hospital premises. Sons of Parul Jana could not control E
themselves. The appellant was also not spared. Being a heart patient and
already had undergone heart surgery, he was very much upset as outsiders
brought by Dr. Bhattacharya started pushing and dragging the persons
including the appellant and sons of Parul Jana out of the hospital. The appellant
was bewildered and motionless for some time. The appellant apprehended
that Dr. Bhattacharya would create a situation which may adversely affect F
appellant's health. There was heated exchange of words which resulted in
commotion. There was scuffle on the arrival of outsiders and two sons of
Parul Jana out of hospital premises. The appellant immediately contacted the
General Manager (Projects) and requested him to help to control the situation.
When the General Manager reached the hospital, the appellant explained the G
situation to him. The General Manager also met Dr. Bhattacharya to get true
and correct facts as to how the incident had happened. The General Manager
then advised the appellant to go back. Immediately, the appellant left the
hospital. In the entire incident, asserted the appellant, save and except
accompanying sons of Parul Jana, he did nothing. He was not involved in the
incident in any manner whatsoever. It was the Chief Medical Officer, who H
320 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A alone was responsible for the entire unfortunate situation. He also inflicted
injuries on two sons of Parul Jana. Dr. Bhattacharya, however, cooked up a
false case against the appellant alleging that the appellant had assaulted and
injured him. On 6th May, 1999, i.e. on the next day, the Chief Medical
Officer, Dr. Bhattacharya reported to the management that at the late night
B hours of 5th May, 1999, the appellant led by a bunch of hooligans had visited
the hospital, assaulted him, i.e. Dr. Bhattacharya and abused and threatened
other officers. On the basis of the said complaint, on the same day, i.e., on
6th May, 1999, the General Manager of the Corporation dismissed the appellant
for allegedly assaulting the Chief Medical Officer. No notice was issued, no
explanation was sought, no charge sheet was filed, no disciplinary enquiry
C was instituted and no opportunity of hearing was afforded to the appellant.
It was stated that in the interest of security of Refinery, the General Manager
had to take firm action immediately. Criminal proceedings were also initiated
and a criminal case was filed against the appellant for offences punishable
under Sections 147, 149, 341, 323 and 506 of the Indian Penal Code. The
D General Secretary ofHaldia Refinery Employees' Union objected to unlawful
and arbitrary dismissal of the appellant and wrote a letter to the Corporation
requesting it to reinstate the appellant. No positive action, however, was
taken by the Corporation. In the circumstances, the appellant was constrained
to approach the High Court of Calcutta by filing a Writ Petition on May 12,
1999. On May 13, 1999, the learned single Judge, in view of the urgency of
E the matter, dispensed with the requirement of Writ Rules, took up the matter
for admission-hearing and directed the appellant to serve copies of the writ
petition alongwith annexures upon all respondents within a week and to file
affidavit of service on the next returnable date which was fixed as 28th June,
1999. Ex parte ad-interim relief was also granted till June 30, 1999. Being
F aggrieved by the order passed by the learned single Judge granting ex parte
ad-interim relief, the Corporation approached the Division Bench and the
Division Bench by an order dated June 22, 1999 set aside the order passed
by the learned single Judge. According to the Division Bench, in the facts
and circumstances of the case, it was not proper for the learned single Judge
G to have passed ex parte ad-interim order. The appeal was accordingly disposed
of. So far as criminal case is concerned, the learned Judicial Magistrate
before whom the case was placed for hearing disposed it of on 5th April,
2002 and the appellant was acquitted. The Writ Petition came up for hearing
before the learned single Judge who dismissed it on July 9, 2002. The appellant
preferred an appeal before the Division Bench against the order passed by the
H
AJITKUMARNAG1'. GEN. MAN., INDIANOJLCORPN. LTD. [THAKKER,J.] 32 J
learned single Judge which, as stated above, came to be dismissed by the A
Division Bench. Against the said order, the appellant had approached this
Court by filing Special Leave Petition on May 17, 2004.
- When the matter was placed for admission on July 27, 2004, notice was
issued by this Court. On July 25, 2005, it was placed before a two Judge
Bench. Leave was granted and the Court passed the following order: B
"Delay condoned.
Leave granted.
In view of the fact that there are conflicting decisions in the case C
of Workmen of Hindustan Steel Ltd. v. Hindustan Steel Ltd. and Ors.,
reported in [1984] (Suppl.) SCC 554 and in the case Haripada Khan
v. Union of India and Ors.. reported in [ 1996] I SCC 536 it will be
appropriate that this matter be considered by a larger Bench. Papers
be placed before Hon'ble the Chief Justice for necessary orders."
D
It may be stated at this stage that on November 20, 2004, the appellant
herein instituted a substantive petition under Article 32 of the Constitution
and challenged the validity and vires of Clause (vi) of Standing Order 20 of
the Certified Standing Orders of the Indian Oil Corporation since he had not
challenged the validity of the Standing Orders before the High Court of
Calcutta. On January 20, 2005, notice was issued and the Writ Petition was E
ordered to be tagged with S.L.P.(C) No. 21248 of 2004 (Civil Appeal NO.
4544 of 2005). That is how, both the matters have been placed before us.
We have heard the learned counsel for the parties.
Mr. P.P. Rao, learned Senior Advocate, appearing on behalf of the F
appellant contended that the respondent-Corporation is 'State' within the
meaning of Article 12 of the Constitution and every action of the Corporation,
therefore, must be in conformity with the fundamental rights guaranteed by
Part III of the Constitution. According to him, Standing Order 20, and in
particular Clause (vi) thereof, is arbitrary, irrational and ultra vires Article 14 G
of the Constitution inasmuch as it empowers and authorizes the General
Manager of the Corporation to dismiss an employee without following the
rule of audi alteram partem and without observing the principles of natural
justice. Such a rule, submitted Mr. Rao, violates the fundamental principles
of justice and infringes Article 14. A similar provision in the nature of second
proviso to Article 311 (2) of the Constitution have been interpreted in several H
322 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.
A cases by this Court and it has been held that save and except grave situations,
no employee can be dismissed or removed from service without observing
the rules of natural justice. Such provisions have also been held to be bad and
against public policy under Section 23 of the Contract Act, 1872. Even if
there is a term in the contract or in a Rule, it is liable to be struck down as
B arbitrary and ultra vires Article 14 as also Article 311 (2) of the Constitution.
The counsel also submitted that the learned single Judge as well as the Division
Bench were wrong in not relying upon the decisions cited at the Bar and in
mechanically and blindly applying Clause (vi) of the Standing Order 20.
Even on merits, the appellant could not be held liable. He had merely
C accompanied the two sons of Parul Jana to the hospital. The unfortunate
incident was. the result of the behaviour of the Chief Medical Officer for
which, he alone was responsible and the appellant could not be punished for
the misdeeds of Dr. Bhattacharya. It was further submitted by Mr. Rao that
this is a fit case in which necessary guidelines are required to be issued by
this Court so that blanket and uncanalised· power under the said provision
D may not be misused by the General Manager. It was also submitted that when
the criminal case was registered against the appellant and he was acquitted
0
of the charges levelled against him, it was incumbent on the Corporation to
reinstate him in service with full back wages. Finally, it was submitted that
the appellant has reached the age of superannuation. The question of
E reinstatement is thus academic. It was, therefore, prayed that keeping in view
the totality of facts, the order passed by the General Manager may be quashed
and set aside by directing the respondent to extend monetary benefits to the
appellant.
The learned counsel for the respondent-Corporation, on the other hand,
p supported the order. It was stated that .the appellant cannot be said to be an
employee holding "civil post" under Part XIV of the Constitution and, as
such, he cannot claim protection of Article 311. He is governed by the Rules,
Regulations and Standing Orders of the Corporation. The Corporation is
governed by the Certified Standing Orders. Clause (iii) of Standing Order 20
provides for disciplinary enquiry against an employee of the Corporation and
G taking of appropriate action on the basis of such enquiry. Clause (vi) of
Standing Order 20, however, deals with special procedure in certain cases
and empowers the General Manager to dismiss or remove a workman in
certain circumstances. In bona fide exercise of the said power, the General
Manager passed an order on 6th May, 1999 and dismissed the appellant from
H service. The order is a speaking order recording reasons as to what compelled
\-
NIT KUMAR NAG v. GEN. MAN., INDIAN OIL CORPN. LTD. [THAKKER, l.] 323
the General Manager to treat the case as exceptional in nature and the General A
Manager was constrained to exercise his power under the said provision. It
was also submitted that from the order, it is clear that the appellant misbehaved
with the staff of the hospital and assaulted the Chief Medical Officer and
caused injuries. To ensure maintenance of discipline and taking into account
several statements, the General Manager had taken the impugned action. B
Such an action cannot be said to be arbitrary, irrational or abuse of power.
The counsel submitted that acquittal by a criminal court is hardly a relevant
factor so far as exercise of power by the General Manager is concerned:
Standing Order 20 (vi) relates to special procedure in cases of exceptional
nature. Such a provision cannot be said to be ultra vires Article 14 of the
Constitution. As far as Article 311 is concerned, it does not apply to employees C
of the Corporation and hence, it cannot be invoked or pressed into service by
the appellant. It was further submitted that the appellant had challenged the
order of dismissal by filing a petition but he did not challenge the validity or
vires of Clause (vi) of Standing Order 20 before the learned single Judge or
before the Division Bench and argued the matter on merits and the case was
decided against him. He, therefore, now cannot be permitted to challenge the D
validity of Clause (vi) of Standing Order 20 before this Court as such challenge
would be barred by res judicata or by constructive res judicata. It was also
submitted that the order passed by the General Manager is subject to appeal
under Standing Order 21 of the Standing Orders and the appellant had
exercised the said right by filing an appeal. The Appellate Authority considered E
the relevant provisions of Standing Orders as also the order dated 6th May,
1999 passed by the General Manager and having applied its mind to the facts
and circumstances, dismissed the appeal observing that there was no ground
to interfere with the punishment imposed on the appellant. It was, therefore,
submitted that no case has been made out by the appellant and the appeal
deserves to be dismissed. Since the appellant had not challenged the validity F
:if Clause (vi) of Stranding Order 20 before the High Court, his petition is not
maintainable and may also be dismissed.
Having heard the learned counsel for the parties, we are of the view
that the appeal as well as the writ petition deserve to be dismissed. So far as
preliminary objection as to maintainability of the petition in this Court and
G
the applicability of res judicata in the appeal is concerned, it is true that the
appellant had not taken the ground as to vires of Clause (vi) of Standing
Order 20 either before the learned single Judge or before the Division Bench
of the High Court. At the same time, however, when he has approached this
Court against the decision of the High Court and has raised this ground, it H
324 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A would not be appropriate to preclude him from arguing the case on the vires
or validity of Clause (vi) of the Standing Order 20. Moreover, he has also
filed a substantive petition for the said purpose under Article 32 of the
Constitution. The preliminary objection, therefore, does not impress us and
we have allowed both the parties to argue the case on vires of Standing Order
B 20(vi) as well as on merits.
As far as acquittal of the appellant by a criminal court is concerned, in
our opinion, the said order does not preclude the Corporation from taking an
action if it is otherwise permissible. In our judgment, the law is fairly well
settled. Acquittal by a criminal court would not debar an employer from
C exercising power in accordance with Rules and Regulations in force. The two
proceedings - criminal and departmental are entirely different. They operate
in different fields and have different objectives. Whereas the object of criminal
trial is to inflict appropriate punishment on offender, the purpose of enquiry
proceedings is to deal with the delinquent departmentally and to impose
penalty in accordance with service Rules. In a criminal trial, incriminating
D statement made by the accused in certain circumstances or before certain
officers is totally inadmissible in evidence. Such strict rules of evidence and
procedure would not apply to departmental proceedings. The degree of proof
which is necessary to order a conviction is different from the degree of proof
necessary to record the commission of delinquency. The rule relating to
E appreciation of evidence in the two proceedings is also not similar. Jn criminal
law, burden of proof is on the prosecution and unless the prosecution is able
to prove the guilt of the accused 'beyond reasonable doubt', he cannot be
convicted by a court of law. In departmental enquiry, on the other hand,
penalty can be imposed on the delinquent officer on a finding recorded on
the basis of 'preponderance of probability'. Acquittal of the appellant by a
F Judicial Magistrate, therefore, does not ipso facto absolve him from the liability
under the disciplinary jurisdiction of the Corporation. We are, therefore,
unable to uphold the contention of the appellant that since he was acquitted
by a criminal court, the impugned order dismissing him from service deserves
to be quashed and set aside.
G As far as the status of the appellant is concerned, it must be stated that
Mr. Rao, Senior Advocate fairly conceded at the hearing of the appeal and
the writ petition that the appellant is not governed by Article 311 of the
Constitution since he cannot be said to be 'civil servant'. Jn this connection,
it will be profitable to refer to a decision of the Constitution Bench of this
H Court in Dr. S. L. Agarwal v. General Manager, Hindustan Steel limited
AJITKUMARNAGr. GEN. MAN, INDIANOILCORPN. LTD. [THAKKER,J.) 325
(Hindustan Steel Limited!), and [1970] 3 SCR 363 ; [1970] l SCC 177. In A
that case, A was appointed as Assistant Surgeon by the Board of Directors
of the Corporation for one year. After completion of the probation period, he
was employed on contract basis and his services were terminated in accordance
with the terms of the contract. He filed a writ petition in the High Court
contending that his services were wrongly terminated which was violative of B
Article 311 of the Constitution. The Corporation contended that Article 311
was not applicable to him as he was employed by the Corporation and he
neither belonged to Civil Service of the Union nor held a civil post under the
Union.
Upholding the objection and considering the ambit and scope of Article C
311, this Court held that an employee of a Corporation cannot be said to have
held a 'civil post' and, therefore, not entitled to protection of Article 311.
According to the Court, the Corporation could not be said to be a 'department
of the Government' and employees of such Corporation were not employees
under the Union. The Corporation has an independent existence and the
appellant was not entitled to invoke Article 311. Hindustan Steel Limited (I) D
has been followed by this Court in several cases. [See Sukhdev Singh and
Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr., [1975] 1 SCC 421,
Som Prakash Rekhi v. Union of India, [1981] I SCC 449, A.L. Kalra v.
Project and Equipment Corporation of India Ltd., [1984] 3 SCC 316, Tekraj
Vasandi v. Union of India a.'1d Ors., [1988] I SCC 236, Pyare Lal Sharma E
v. Managing Director and Ors., [1989] 3 SCC 448, State Bank of India v.
S. Vijay Kumar, [1990] 4 SCC 481 and Satinder Singh Arora v. State Bank
of Patia/a, [1992] Supp 2 SCC 224]
In view of the above pronouncements of this Court, there is no doubt
that the respondent-Corporation is right in submitting that the appellant cannot p
invoke Article 311 by describing him as holding 'civil post' under the Union
or a State. Article 311 of the Constitution, therefore, has no application to the
facts of the case.
Mr. Rao, however, placed strong reliance on a decision of two Judge
Bench of this Court in Workmen of Hindustan Steel Limited & Anr. v. G
Hindustan Steel Limited & Ors., (Hindustan Steel 11); [1984] Supp SCC 554.
In that case, the employer dismissed a workman without holding enquiry and
without giving him an opportunity of being heard. The power was exercised
under Standing Order 32 of the Certified Standing Orders of Corporation.
Standing Order 32 read thus : H
326 SUPREME COURT REPORTS [20051 SUPP. 3 S.C.R.
A "32. Special Procedure in certain cases.-Where workman has been·
convicted for a criminal offence in a court of law or where the General
Manager is satisfied, for reasons to be recorded in writing, that it is
inexpedient or against the interests of security to continue to employ
the workman, the workman may be removed or dismissed from service
without following the procedure laid down in Standing Order 31."
B
The language of Standing Order 32 is 'more or less' similar to Standing
Order 20 (vi) of the Certified Standing Orders of the respondent-Corporation
which reads as under :
"Where a workman has been convicted for a criminal offence in a
c Court of Law or where the General Manager is satisfied for reasons
to be recorded in writing, that it is neither expedient nor in the interest
of security to continue the workman, the workman may be removed
or dismissed from service without following the procedure laid down
under III of this Clause."
D The workman challenged the action inter alia on the ground that
provision of Standing Order 32 is irrational, arbitrary and violative of Article
311. The Court proceeded to consider the objection against Standing Order
32 on the touchstone of Article 311. Describing the provision as 'archaic
standing order reminiscent of the days of hire and fire' relied upon by a
E public sector undertaking to sustain an utterly unsustainable order and to
justify an action taken in violation of the principles of natural justice, the
Court stated that such a provision could not stand. Reproducing Article 311
of the Constitution, the Court held that the minimum requirement of observance
of principle of natural justice could not be dispensed with and the action
taken by the Corporation was illegal and unlawful. The Court, therefore,
F directed the Corporation to 'recall and cancel the order' by reinstating the
workman. The Corporation was granted an opportunity to recast its Standing
Order 32 to be brought in conformity with the second proviso to Article
311(2) of the Constitution.
G The endeavour of Mr. Rao before us is that the above case was a case
of termination of service of an employee of the Corporation. The Standing
Order which came up for consideration in that case was 'more or less' similar
to the Standing Order with which we are concerned. In spite of the fact that
the employee was engaged by the Corporation, the Court considered the
provisions of Article 311 of the Constitution and the principles applicable to
H civil servants. It was, therefore, submitted that in the present case also, the
AnTKUMARNAG,..GEN.MANAGER,INDIANOILCORP.LTD.[TIIAKKER,J.J 327
ratio laid down in that case may be applied and the impugned order passed A
by the Corporation may be set aside.
We are unable to agree with Mr. Rao. It is no doubt true that the
provision which came up for consideration before a two Judge Bench in
Hindustan Steel Limited (II) was against an order passed by the Corporation.
It was similar to Clause (vi) of Standing Order 20 which this Court is called B
upon to consider. At the same time, however, it cannot be overlooked that
two Judge Bench proceeded to consider the validity of the provision on the
anvil of Article 311 which could not be attracted as it was not applicable. The
point was settled and finally decided by the Constitution Bench of this Court
in Hindustan Steel Limited (!). Unfortunately, however, the attention of the C
Court was not invited to the said case and in Hindustan Steel Limited (II), the
Court proceeded as if the employees of the Corporation were governed by
Article 311. Hindustan Steel Limited (II) is thus per incuriam. It could not
have applied Article 311 had the attention of the two Judge Bench been
drawn to the decision of the Constitution Bench in Hindustan Steel Limited
(!). D
At the time of admission hearing, reference was also made to another
two Judge Bench decision of this Court in Hari Pada Khan v. Union of India
and Ors., [ 1996] I SCC 536. In that case, the petitioner who was a permanent
staff member of Indian Oil Corporation was involved in theft of oil and a E
First Information Report was lodged against him. On the basis of that report,
a criminal case was registered and he was arrested. Relying on Standing
Order 20 (iv) of the Corporation, he was dismissed from service. Standing
Order 20(iv), as then stood, was similar to present Standing Order 20(vi) and
empowered the General Manager of the Corporation to dismiss a workman
if he had been convicted for a criminal offence in a court of law or if the F
General Manager was satisfied for reasons to be recorded in writing that it
was neither expedient nor in the interest of the Corporation to continue the
workman in service.
Standing Order 20(iv) read thus;
G
"Where a workman has been convicted for a criminal offence in a
Court of Law or where the General Manager is satisfied for reasons
to be recorded in writing, that there is neither expedient nor in the
interest of security to continue the workman, the workman may be
removed or dismissed from service without followir.g the procedure H
328 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A laid down under III of this clause."
The action of the Corporation was challenged by the dismissed employee.
Upholding the order of the Corporation, this Court held that the action could
be taken. The Court stated that the rule had been made by the Corporation
with the intention to prevent an employee of the Corporation served with a
B charge sheet and arrest in furtherance thereof from continuing in service.
Mr. Rao, however, placed reliance on the following observations :
"Of course it would be subject to the result of the trial. Continuance
of the officer involved in an offence would be an affront to good and
C disciplined conduct of workmen. His continuance in service of the
Corporation would demoralize the service. Therefore, it was most
expedient in the public interest not to hold any fu.ther enquiry and
terminate his services forthwith. However, it would be subject to the
result of the trial."
D The endeavour of Mr. Rao is that this Court had expressly stated in
Hari Pada Khan that an order of dismissal from service would be subject to
result of the trial. In the present case, a criminal case was registered against
the appellant and he was prosecuted. The prosecution, how~ver, resulted in
acquittal of the appellant. As per the ratio in Hari Pada Khan, submitted Mr.
E Rao, the appellant is entitled to reinstatement.
We are unable to accept the contention. It is true that in Hari Pada
Khan, this Court upheld the order of dismissal by expressly observing that it
would_ be subject to result of trial but what Mr. Rao forgets is that in Hari
Pada Khan, the power was exercised by the General Manager not under the
F second part of the Standing Order 20 (iv), but on the first part thereof, which
covered cases of conviction of a workman for a criminal offence. The second
part dealt with satisfaction of the General Manager about expediency of not
keeping a workman in service. Since the power was exercised by the General
Manager on the first part and the basis was registration of a of criminal case
G against the workman, obviously, this Court was justified in observing that
when the action was taken on the basis of pendency of a criminal case, the
action of dismissal of the workman must abide by the result of the trial. The
facts of the case before us are totally different. In this case, the General
Manager has exercised the power under the second part of the Standing
Order 20(vi) which empowered him to take action on satisfaction for reasons
H
AJIT KUMAR NAG v. GEN. MAN., INDIAN OIL CORPN. LTD. [THAKKER, J.] 329
to be recorded in writing that it was not in the interest of security to continue A
the workman in service. The direction in Hari Pada Khan, therefore, does not
apply to the factual matrix of the present case for claiming relief by the
appellant.
The appellant in Hari Pada Khan relied upon Hindustan Steel Limited
(II), and submitted that in that case, this Court struck down a similar provision B
being violative of natural justice and also violative of Article 14. The Court,
however, held that the principles of natural justice had no application when
the authority was of the opinion that it would be inexpedient to hold an
enquiry and it would be against the interest of security of the Corporation to
continue in employment the offender workman when serious acts were likely C
to affect the foundation of the institution. The Court also noted that a similar
provision was held valid and intra vires by this Court in Mathura Refinery
Mazdoor Sangh v. Deputy Chief Labour Commissioner and Ors., Special
Leave Petition, (Civil) No. 11659 of 1992, decided on November 13, 1995.
Mr. Rao then contended that even though the provision of Article 311 D
of the Constitution do not apply to the appellant being an employee of the
Corporation, the general principles behind the said provision would apply to
the employees of the Corporation also. He, therefore, submitted that while
dealing with the case of an employee of the Corporation, second proviso to
Article 311(2) and the decisions of this Court in interpreting the said provision
would be kept in mind by the Court. He also submitted that the Corporation, E
being the "State" within the meaning of Article 12 of the Constitution, Article
14 would apply to the respondent and an order passed or action taken arbitrarily
and without complying with the principles of natural justice must be held null
and void.
Reference in this connection was made to a decision of Constitution
F
Bench in Union of India and Anr. v. Tulsi Ram Patel, [1985] 3 SCC 398. In
Tutsi Ram Patel, certain civil servants were dismissed from service by way
of penalty by the Government by invoking the second proviso to Article
311 (2) of the Constitution. They challenged the validity of the orders inter
a/ia on the ground that the action was against the principles of natural justice G
and second proviso to Article 311 (2) could not have been invoked. This
Court was, therefore, called upon to consider the legality and validity of the
orders in the light of the provisions of Article 311 (2) and observance of
principles of natural justice.
By majority of 4 : 1, the Court upheld the action of the Government of H
330 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A invoking exceptional power under the second proviso to Article 311(2). The
Court observed that the principles of natural justice have come to be recognized
as a part of the guarantee contained in Article 14 of the Constitution and
violation thereof would mean that the action would be arbitrary and irrational.
The Court also stated that Article 311 (2) required that before a civil servant
is dismissed, removed or reduced in rank, an enquiry must be held and
B reasonable opportunity of being heard must be afforded to him in respect of
the charges levelled against him. The Court, however, observed that in certain
circumstances, application of the principles of natural justice could be modified
and even excluded. Both in England and in India, it is well established that
where a right to a prior notice and an opportunity to be heard before an order
C is passed would obstruct in taking of prompt action, such a right could be
excluded! It could also be excluded where the nature of the action to be
taken, its object and purpose and the scheme of the relevant statutory provisions
warrant its exclusion. The maxim audi a/teram partem could not be invoked
if import of such maxim would have the effect of paralyzing the administrative
process or where the need for promptitude or the urgency so demands. The
D Court stated that if legislation and the necessities of a situation can exclude
the principles of natural justice including the audi a/teram partem rule, a
fortiori so can a provision of the Constitution, for a constitutional provision
has a far greater and all pervading sanctity than a statutory provision. It also
stated that the principles of natural justice having been e_xpressly excluded by
E a constitutional provision, namely, the second proviso to Article 311 (2), it
could not be reintroduced by a side door by providing for the enquiry. The
Court, however, hastened to add that where the second proviso to Article
311 (2) is applied on an extraneous ground or a ground having no relation to
the situation envisaged in that clause, the action would be mala fide and void.
In such a case, invalidating factor may be refereable to Article 14 .. The
F second proviso to Article 311(2) was based on public policy, in public interest
and for public good and it must be given effect to. Regarding opportunities
to such Government servants who have been dealt with in exercise of power
under the second proviso to Article 311 (2), the Court stated :
"In this connection, it must be remembered that a government servant
G is not wholly without any opportunity. Rules made under the proviso
to Article 309 or under Acts referable to that article generally provide
for a right of appeal except in those cases where the order of dismissal,
removal or reduction in rank is passed by the President or the Governor
of a State because they being the highest constitutional functionaries,
H there can be no higher authority to which an appeal can lie from an
NITKUMARNAGv. GEN. MAN., INDIANOILCOR.PN.LTD. [TIIAKKER,J.] 33 J
order passed by one of them. Thus, where the second proviso applies, A
though there is no prior opportunity to a government servant to defend
himself against the charges made against him, he has the opportunity
to show in an appeal filed by him that the charges made against him
are not true. This would be a sufficient compliance with the
requirements of natural justice. In Maneka Gandhi case and in liberty B
Oil Mills v. Union of India, the right to make a representation after
an action was taken was held to be a sufficient remedy, and an appeal
is a much wider and more effective remedy than a right of making
a representation."
The submission of Mr. Rao is that second proviso to Article 311 (2) C
deals with three situations,
(i) where a person is convicted on a criminal charge;
(ii) where the disciplinary authority is satisfied for the reasons to
be ~ecorded in writing that it is not reasonably practicable to hold an
~~;~ D
(iii) where the President or Governor is satisfied that in the interest
of the security of the State, it is not expedient to hold an enquiry.
According to Mr. Rao, Clause (vi) of Standing Order 20 likewise takes
into account two eventualities; E
(i) conviction of a workman for a criminal offence by a court of law;
and
(ii) satisfaction of the General Manager for reasons to be recorded in
writing that it is neither expedient nor in the interest of security to F
continue a workman.
He submitted that the power under Clause (vi) of Standing Order 20 is
a serious inroad on the right of a workman and must be construed strictly.
In other words, it is a drastic provision which totally excludes application of
natural justice and audi a/teram partem rule and that too on satisfaction of G
General Manager and not of the Corporation. Clause (c) of second proviso
to Article 311 (2) of the Constitution envisages the satisfaction of constitutional
functionary, i.e. President of India or Governor of a State. In the case of the
respondent-Corporation, however, the power is conferred on General Manager-
an officer of the Corporation. If this provision is upheld, there is every H
332 SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.
A possibility and likelihood of power being abused or misused. Such provision
must, therefore, be held arbitrary and ultra vires of Article 14.
We are unable to agree with the learned counsel. The law is clear on
the point. Tutsi Ram Patel dealt with a similar provision and held it to be
constitutionally valid and intra vires Article 14. Since it related to civil servants
B under the Union or under a State, Clause (c) provided for the satisfaction by
the President or the Governor, as the case may be, "in the interests of the
security of the State". Certified Standing Orders of the respondent-Corporation
have limited application to the Corporation. There was, therefore, no question
of security of State and hence, the limited power is conferred on the General
C Manager of security of the Corporation. General Manager is the highest
administrative head of the Corporation. So it cannot be contended that the
power has been conferred on a petty officer of the Corporation.
We are equally not impressed and hence unable to uphold the contention
that Clause (vi) of Standing Order 20 confers blanket or uncanalised power
D on the General Manager. In our judgment, sufficient guidelines and safeguards
have been provided in the Standing Orders, themselves, such as (i) the power
is conferred on the highest administrative head of the Corporation; (ii)
eventualities have been specifically and expressly stated in Clause (vi) of
Standing Order 20; (iii) satisfaction of the General Manager that such an
eventuality has arisen; (iv) recording of reasons in writing; and (v) right of
E appeal against the decision of the General Manager. Such a provision, in our
considered view, cannot be held arbitrary or unreasonable, violative of Article
14 of the Constitution.
Mr. Rao may be right in submitting that in a given case, the General
F Manager may not exercise the power legally, properly and reasonably. In that
case, the action would be held bad. Apart from the fact that there is an appeal
against the order passed by the General Manager, an aggrieved party can also
approach a High Court under Article 226/227 of the Constitution and/or this
Court under Article 321136 of the Constitution. Judicial review conferred on
High Courts and on this Court by the Constitution remains unfettered and
G unaffected.
It is well settled that a provision which is otherwise legal, valid and
intra vires cannot be declared unconstitutional or ultra vires merely on the
ground that there is possibility of abuse or misuse of such power. If the
provision is legal and valid, it will remain in the statute book. Conversely if
H the provision is arbitrary, ultra vires or unconstitutional, it has to be declared
AJITKUMARNAGr. GEN. MAN., !ND!ANO!LCORPN. LTD. [THAKKER,J.j 333
as such notwithstanding the laudable object underlying it. A
Before about five decades in A. Thanga/ Kunju Musaliar v. M.
Venkitachalam Patti and Anr. [1955] 2 SCR 1196, dealing with a similar
contention, speaking for the Constitution Bench, Bhagwati, J. stated;
"It is to be presumed, unless the contrary were shown that the B
administration of a particular law would be done "not with an evil
eye and unequal hand" and the selection made by the Government of
the cases of persons to be referred for investigation by the Commission
would not be discriminatory."
Again, in the leading case of State of Rajasthan and Ors. v. Union of C
India and Ors., [ 1977] 3 SCC 592, a seven-Judge Bench was called upon to
consider a similar argument. It was urged that extraordinary power conferred
by Article 356 of the Constitution could be abused.
Negativing the contention, Bhagwati, J. (as he then was) stated;
D
"It must be remembered that merely because power may sometime be
abused, it is no ground for denying the existence of the power. The
wisdom of man has not yet been able to conceive of a government
with power sufficient to answer all its legitimate needs and at the
same time incapable of mischief'. (emphasis supplied)
E
Very recently, in Sushi/ Kumar Sharma v. Union of India & Ors.,
[2005] 6 SCC 281, constitutional validity of Section 498-A of the Penal Code
was challenged inter a/ia on the ground of its misuse and/or abus\:. A prayer
similar to one which has been made before us by Senior Advocate Mr. Rao
was also made in Sushi/ Kumar Sharma that in case the provision is held to F
be constitutional and intra-vires, this Court may formulate "guidelines" so
that innocent persons are not victimized by unscrupulous elements making
false accusations. Reiterating the principle that mere possibility of abuse of
legal provision would not make a statute invalid, the Court rejected the prayer.
Since, in our opinion, sufficient safeguards have been provided in the G
Standing Orders and action taken by the General Manager under Standing
Order 20(vi) could be challenged in appeal under Standing Order 21 and in
the High Court under Article 226/227 and in this Court under Article 32/136
of the Constitution, the same cannot be held arbitrary, unreasonable or ultra
vires Article 14 of the Constitution. If in a given case, there is abuse or mis-
use of power, such action or order would be bad. It would, however not make H
334 SUP.REME COURT REPORTS [2005] SUPP. 3 S.C.R.
A Standing Order 20(vi) ultra vires.
In our opinion, the learned counsel for the respondent-Corporation, is
right that Standing Order 21 which enables the aggrieved party to file an
appeal is very wide. It reads thus:
B "21. Appeals :
The authorities competent to impose various penalties mentioned
in Standing Order No. 20 as well as the appellate authorities shall be
notified by the management from time to time. A workman on whom
any of the penalties is imposed shall have· the right of appeal to the
c authority notified in this behalf. The appeal shall be submitted within
15 days of receipt of the order of the punishing authority, and the
appellate authority, shall dispose of the appeal within 30 days of
receipt of the appeal.
At the further enquiry, if any, held in the appeal, the workman
D concerned shall be afforded reasonable opportunity of explaining and
defending his action with the assistance of a co-worker and the
Presenting Officer may also be given the opportunity to furnish further
evidence. The appellate authority may also impose enhance penalty
after giving an opportunity to the applicant to show cause."
E Plain reading of the above Standing Order makes it abundantly clear
that a workman on whom any of the penalties is imposed has a right to
appeal and the Appellate Authority has to decide such appeal ofa workman
in accordance with law after affording him reasonable opportunity. It also
allows the appellant-workman to have assistance of a co-worker. It, therefore,
p cannot be said that once an action is taken under Clause (vi) of Standing
Order 20, the matter is over. In view of exceptional situation contemplated
by Clause (vi) and on satisfaction of the General Manager that an immediate
action is necessary, he can dismiss or remove the workman. Such workman,
however, may invoke Standing Order 21 and may file an appeal and convince
the Appellate Authority that the action taken by the General Manager in
G purported exercise of power under Standing Order 20(vi) was unlawful or
improper. If the Appellate Authority is satisfied, it may set aside the action
of the General Manager and grant appropriate relief to the workman. Even
if the Appellate Authority holds against the workman and confirms the order
of dismissal/removal, judicial review is available to the aggrieved appellant,
H albeit on limited grounds. To us, therefore, it is clear that the Standing Order
AllTKUMARNAGv. GEN. MAN., INDIANOILCORPN. LTD. (THAKKER,J.] 335
20(vi) allows the General Manager to take an action in emergency keeping A
in view exceptional situation which has arisen and he is satisfied that the
workman should be removed or dismissed from service without following
procedure laid down in Standing Order 20(iii). Whereas Standing Order 20(iii)
deals with cases in general and provides enquiry and pre-decisional hearing,
Standing Order 20(vi) is an exception to the general rule and deals with
special cases under which an action can be taken. Since appeal is provided B
in all cases, the case is one of post-decisional hearing.
We are aware of the normal rule that a person must have a fair trial and
a fair appeal and he cannot be asked to be satisfied with an unfair trial and
a fair appeal. We are also conscious of the general principle that pre-decisional C
hearing is better and should always be preferred to post-decisional hearing.
We are further aware that it has been stated that apart from Laws of Men,
·Laws of God also observe the rule of audi alteram partem. It has been stated
that the first hearing in human history was given in the Garden of Eden. God
did not pass sentence upon Adam and Eve before giving an opportunity to
show cause as to why they had eaten forbidden fruit. (See R. v. University D
of Cambridge, (1723) 1 Str 557]. But we are also aware that principles of
natural justice are not rigid or immutable and hence they cannot be imprisoned
in a straight-jacket. They must yield to and change with exigencies. of
situations. They must be confined within their limits and cannot be allowed
to run wild. It has been stated : "To do a great right after all, it is permissible E
sometimes to do a little wrong". [Per Mukharji, C.J. in Charan Lal Sahu v.
Union ofIndia, (Bhopal Gas Disaster); [1990] l SCC 613] While interpreting
legal provisions, a court of law cannot be unmindful of hard realities of life.
In our opinion, the approach of the Court in dealing with such cases should
be pragmatic rather than pedantic, realistic rather than doctrinaire, functional
rather than formal and practical rather than 'precedential'. F
Mr. Rao urged that the General Manager has mechanically and without
considering the facts of the case has passed the order under Standing Order
20(vi) and on that ground also, it deserves to be set aside. Now, the order
passed by the General Manager in the exercise of power under Standing
Order 20(vi) dated 6th May, 1999 is on record. It is a self-contained order. G
Detailed reasons have been recorded by the General Manager inter a/ia stating
that the appellant herein had led a bunch of hooligans to Haldia Refinery
Hospital and assaulted and abused Dr. Bhattacharya, the Chief Medical Officer,
when he was in the hospital alongwith other doctors attending a critical
patient in the indoors. The appellant had slapped, kicked, pushed around and H
336 SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.
A dragged Dr. Bhattacharya. The appellant alongwith his associates prevented
anyone present there from making any contact outside even on phone. On
coming to know about the incident, some officers reached the site. They were
also abused and threatened by the appellant. The General Manager then went
through the complaints/reports of various persons present during and
B immediately after the incident and on careful examination of the material, he
was satisfied that the appellant indulged himself in the acts of violence without
any valid reason or compelling circumstances or provocation. Those acts of
appellant resulted into an atmosphere of terror being created within the hospital
premises. The doctors of the hospital have jointly submitted a representation
expressing their concern and demoralizing and terrorising effect that was
C created in the minds of the hospital staff. The General Manager also noted
that the situation had arisen out of the incident which resulted into suspension
of the hospital services resulting into great inconvenience being caused to the
residents of the Refinery Township. The Officers' Association which was the
recognized Union had condemned the incident and demanded stern action.
The General Manager perused the Memorandum submitted to him by the
D representative of Indian Medical Association of Haldia and Chaitanyapur
· Branches and the Association of Health Services Doctors (WB), Haldia Branch,
condemning the incident and assault on Dr. Bhattacharya. The General
Manager noted that the appellant was not directly connected with the case of
Parul Jana, the Head Sister-in-Charge ofHaldia Hospital, who was undergoing
E treatment at Apollo Hospital, Madras, which was reported to be undertaken
on 3rd May, 1999 successfully. The General Manager was satisfied that the
acts of the appellant of threatening, intimidating and assaulting senior officer
of the Refinery Hospital and abusing and behaving unmannerly with superior
authority amounted to subversive and prejudicial to the interest of the
Corporation. He was also 'satisfied' and 'convinced' that the said acts of
F misconduct were 'very grave and serious'. Those acts jeopardized the normal
operation not only of the Refinery Hospital but also of the Corporation.
Besides carefully examining the facts and circumstances, the General Manager
also examined the past record of the appellant. The appellant was issued with
a punishment of withholding four annual increments with cumulative effect
G for acts of misconduct. The Management, however, took a lenient and
magnanimous view and revised the punishment twice, first on March 12,
1990 and then on February 4, 1997, thereby bringing down the punishment
to withholding of only one annual increment with non-cumulative effect.
According to the General Manager, the appellant indulged in the acts of
misconduct without any provocation or compelling circumstances. He Was,
H therefore, satisfied that for serious and grave acts, action was required to be
AJ!TKUMARNAGv.GEN.MAN.,IND!ANOILCORPN.LTD.[THAKKER,J.] 337
taken again him. According to the General Manager, keeping in view the A
magnitude of the issues involved and in the interest of restoring and
maintaining normal discipline and morale of employees of the Corporation,
and the Hospital Staff in particular and to immediately restore the confidence
of the Officers' community, of their security in due discharge of their duties
honourably and fearlessly, and in the interest of the security of the Refinery, B
firm action was necessary. He was convinced that delay would seriously
jeopardize the interest of the Corporation especially the vital requirement of
providing Medical Services to the sick and needy and the serious impact the
incident may have on the normal operation of the Refinery. On those grounds,
and in the facts and circumstances, the General Manager was satisfied that it
was not in the interest of the security of the Refinery and Staff to continue C
the appellant in the employment of the Corporation and accordingly he had
dispensed with the enquiry under Standing Order 20(iii) and exercised power
under Standing Order 20(vi) and passed the impugned order. In our opinion,
such action can never be termed arbitrary, irrational or unreasonable.
When the appellant preferred an appeal against the order passed by the D
General Manager, the Appellate Authority considered the facts and
circumstances of the case and dismissed the appeal by an order dated I Ith
December, 2001. The Appellate Authority noted that the appellant in his
Memorandum of Appeal did not deny various acts of misconduct leading to
the serious incident of 6th May, 1999 at Haldia Refinery. The appellant als,1 E
did not put forward any explanation or provocation for the unfortunate incident
but had accepted that he engaged in certain acts which he would not like to
remember. The Appellate Authority, therefore, held that the acts of misconduct
were 'very grave and serious' and were committed without provocation or
compelling circumstances.
F
The Appellate Authority also observed that Dr. Bhattacharya sustained
several injuries in the attack. According to the report issued by Dr. Bimal
Maiti, an independent doctor at Haldia Hospital, Dr. Bhattacharya had the
following injuries on his person;
(I) large echymosis in front of right thigh; G
(2) large echymosis over right back of thigh;
(3) small abrasion over the nose (It);
(4) large bruise over cheek (It);
(5) multiples scratches over cheek; H
338 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A (6) tender bruise over right elbow; and
(7) haematonia just below the right elbow.
According to the Appellate Authority, therefore, the situation had arisen
out of the incident in which it was neither expedient nor in the interest of the
B security of the Refinery and its personnel to continue the workman any more
and the power was exercised by the General Manager under Standing Order
20(vi). The Appellate Authority noted that in past also, the appellant had
committed misconduct but a lenient view was taken and the punishment
imposed on him was reduced. Such punishment, however, had no any deterrent
effect on the appellant and he repeated similar acts of misconduct in 1999.
C There was, therefore, no ground for further leniency. Taking into account
grave and serious misconduct committed and their likely repercussions on
the general discipline and safety of officers, the punishment imposed on him
needed no interference. Accordingly, the appeal was dismissed.
Jn our view, in the facts and circumstances of the case, it cannot be said
D that either the General Manager or the Appellate Authority in coming to the
above conclusion had committed any error of law which requires interference
in the exercise of power of judicial review by this Court.
In Satyavir Singh and Ors. v. Union of India and Ors., (1985] 4 SCC
E 252, a three-Judge Bench of this Court has held that taking of appropriaie
action in exceptional circumstances is a matter of assessment to be made by
the disciplinary authority and must be judged in the light of the circumstances
then prevailing. Normally, it is the officer on the spot who is the best judge
of the situation and his decision should not be interfered with lightly. In
Satyavir Singh, this Court considered orders of dismissal passed against some
F of the employees of Research a1,1d Analysis Wing (RAW) without holding
inquiry as contemplated by Article 311 (2) of the Constitution. The power
was exercised by the disciplinary authority under the second proviso to Article
3 I I(2). Reiterating the principles laid down in Tulsi Ram Patel and upholding
the action, the Court observed that there are circumstances in which such a
G drastic action is called for. The Court noted that it was not possible to
enumerate the cases in which it would not be reasonably practicable to hold
inquiry under Article 311 (2), but certain illustrative cases have been highlighted
which included activities of terrorizing, threatening or intimidating witnesses
who might be giving evidence against a civil servant or threatening,
intimidating or terrorizing disciplinary authority or his family members or
H creating an atmosphere of violence or general indiscipline and insubordination.
AJITKUMARNAG1•. GEN. MAN., INDIANOILCORPN. LTD. [THAKKER,J.] 339
The Court also indicated that though it was a mandate of the Constitution to A
record reasons in writing for dispensing with an inquiry, it was not necessary
that such reasons should find place in the final order or they should be
communicated to the delinquent. It was no doubt emphasised that it would
be better if such reasons are recorded in the order itself and communicated.
to the delinquent officer. Regarding suspension of a civil servant, the Court B
opined that it is not necessary that the civil servant should be placed under
suspension until such time the situation is improved and it becomes possible
to hold inquiry against him. According to the Court, it would be difficult to
foresee how long the situation would last and when normalcy would return
or be restored.
The Court then said ;
c
"In certain cases, the exigencies of a situation would require that
prompt action should be taken and suspending a civil servant would
not serve the purpose and sometimes not taking prompt action might
result in the trouble spreading and the situation worsening and at D
times becoming uncontrollable. Not taking prompt action may also
be construed by the trouble-makers as a sign of weakness on the part
of the authorities and thus encourage them to step up their activities
or agitation. Where such prompt action is taken in order to prevent
this happening, there is an element of deterrence in it but this is an
unavoidable and necessary concomitance of such an action resulting E
from a situation which is not of the creation of the authorities."
In our opinion, ratio laid down in Central Inland Water Transport
Corporation v. Brajo Nath Ganguly, [1986] 3 SCC 156 and in Delhi Transport
Corporation v. Delhi Transport Corporation Mazdoor Congress, [1991] Supp F
I SCC 600 JT ( 1990) 3 SC 725 is not relevant or applicable to the case on
hand. In those cases, power had been conferred on the authority to dispense
with services of a permanent/confirmed employee. This Court, therefore,
held that such a provision cannot be said to be in consonance with law. In
Brajo Nath Ganguly, the Court observed that the provision was against public
policy reflected in Section 23 of the Contract Act, 1872 and the provision G
was described as Henry VIII clause.
We have also gone through the decision of the learned single Judge as
well as of the Division Bench. It is clear from the record of the case that the
Writ Petition was filed by the appellant immediately after the order of dismissal
H
340 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
A was passed against him and the learned single Judge considered the legality
of the order. The learned single Judge perused the relevant record produced
at the time of hearing and noted that the alleged incident did take place. All
persons requested for taking a strong action against the petitioner (appellant
herein) and· no lenient view was called for. Even after sons of Parul Jana
B came down from the !st floor and informed the petitioner that their mother's
condition was stable, the petitioner continued the agitation. Being an employee
of the Corporation, the petitioner had no business to lead unruly mob resulting
in damage to property and assaulting the hospital-staff who were on duty and
were treating patients including a patient having cardiac treatment.
C The learned single Judge, therefore, concluded ;
"If such discipline is not considered to be grave, I do not know what
more should be appropriate to justify the order of dismissal".
When an intra-court appeal was filed against that order, the Division
D Bench again· considered the contentions raised by the appellant. Dealing with
the argument that the documents were not given, it was submitted on behalf
of the Corporation that no such prayer was made. The Court, therefore,
observed relying on a decision of this Court in Aligarh Muslim University
and Ors. v. Mansoor Ali Khan, AIR (2000) SC 2783 that no prejudice had
been caused to the appellant. The Court examined the report and perused the
E record. It was disclosed from the material placed before the Court that there
was a situation which created disorder in the establishment for which police
had to be called for and the Ge.neral Manager (PJ) in-charge had to rush late
at night. People were frightened and there was ultimatum by staff-members
due to which there was a possibility of break down of the entire system. The
F Division Bench, therefore, stated; "These are situations with which the person
at the spot has to deal with. The authority on the spot is the best judge of the
situation prevailing. It is he who has to assess the situation and take steps".
In the light of prevailing circumstances, the Division Bench observed, the
action could not be termed as illegal, unlawful or perverse. Regarding ma/a
fide, the Court noted that adequate material had not been placed on record
G which would go to show that the order was malicious or ma/a fide. The
Division Bench, therefore, dismissed the appeal.
Jn our view, neither the learned single Judge nor the Division Bench
has committed any error of law and/or of jurisdiction which deserves
interference in exercise of discretionary jurisdiction under Article 136 of the
H Constitution. As is clear, the. situation has been created by the appellant. It
AJITKUMARNAGv. GEN. MAN, INDIANOILCORPN. LTD. ITHAKKER,J.] 34 J
was very grave and serious and called for immediate stem action by the A
General Manager. Exercise of extraordinary power in exceptional
circumstances under Standing Order 20 (vi) in the circumstances, cannot be
said to be arbitrary, unreasonable or ma/a fide. It is well-settled that the
burden of proving ma/a fide is on the person making the allegations and the
burden is "very heavy". [vide E.P. Royappa v. State of Tamil Nadu and Anr.
(1974] 4 sec 3). There is every presumption in favour of the administration B
that the power has been exercised bona fide and in good faith. It is to be
remembered that the allegations of mala fide are often more easily made than
made out and the very seriousness of such allegations demands proof of a
high decree of credibility. As Krishna Iyer, J. stated in Gu/am Mustafa and
Ors. v. State of Maharashtra and Ors., (1976] I SCC 800; "It (Mala fide) is C
the last refuge of a losing litigant".
We hold Clause (vi) of Standing Order 20 of the Certified Standing
Orders of the respondent-Corporation valid, constitutional and intra vires
Article 14 of the Constitution. We also hold the action taken by the General
Manager of the respondent - Corporation dismissing the appellant petitioner D
from service as legal and lawful. We thus see no substance either in the
appeal or in the writ petition and both are, therefore, dismissed. In the facts
and circumstances of the case, however, there shall be no order as to costs.
K.G. Appeal and writ Petition dismissed. E
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