High Court of Calcutta

Arabinda Tewari Vs. Union of India and Ors.

MANU/WB/2864/2019

06.12.2019

Service

When employee was found guilty of corruption by criminal court, then, unless said conviction was set aside, action of employer in dismissing employee from service cannot be faulted

The Petitioner was serving in the Bharat Coking Coal Limited. A show cause notice was issued to him on 24th June, 2017 on the allegation that, while he was working as Chief Manager (Mining)/Project Officer, he was caught red handed by CBI while demanding and accepting illegal gratification. A case was registered against him by the CBI. The Petitioner was convicted in the said case.

In view of the conviction, the Petitioner was found guilty of committing serious misconduct under Clauses 5.2 and 5.17 of the Conduct, Discipline and Appeal Rules, 1978 (as amended) of the Coal India Limited and was liable to be proceeded against under clause 34.1(i) of the said Rules. The Petitioner was directed to show cause as to why appropriate penalty including dismissal from service should not be imposed upon him under Rule 27 of the said Rules.

The explanation submitted by the Petitioner was not found satisfactory. By an order, the Chairman-cum-Managing Director, Coal India Limited being the disciplinary authority imposed the order of penalty of dismissal from service with immediate effect. Being aggrieved by the order passed by the disciplinary authority, the Petitioner preferred an appeal before the appellate authority. By an order, the appellate authority upheld the order of penalty and dismissed the appeal preferred by the Petitioner.

The Petitioner submits that, it was incumbent upon the employer to initiate a regular disciplinary proceeding prior to passing the impugned order of penalty. Dismissing the Petitioner from service without affording him an opportunity of hearing is contrary to the principle of natural justice.

It is settled law that, an order of suspension of sentence does not mean that the validity of the order has been wiped out. It does not mean that the same has lost its existence. It neither means that the parties will be relegated to their earlier position prior to passing of the order of suspension of sentence. It simply means that the same has been kept under suspension temporarily.

The Supreme Court in Deputy Director of Collegiate Education (Administration), Madras vs. S. Nagoor Meera categorically held that, if the accused government servant is acquitted on appeal or other proceeding the order passed against him can always be reviewed and if the government servant is reinstated he will be entitled to all the benefits to which he would have been entitled to had he continued in service. Continuing a person who has been convicted of a serious offence by a criminal court is not advisable.

The Court succinctly laid down that, when the employee was found guilty of corruption by a criminal court, then, until and unless the said conviction was set aside by the appellate or other higher court, it may not be advisable to retain such person in service. In the instant case, the Petitioner was convicted by the criminal court on charges of corruption. Until and unless said conviction is quashed or set aside by a higher forum, the action of the Respondents in dismissing him from service cannot be faulted.

It is trite law that, the quantum of punishment to be imposed upon an employee is the sole discretion of the employer. The employer has exercised discretion and imposed the punishment of dismissal from service. There does not appear to be any infraction in the Rules relating to disciplinary proceedings and accordingly, the Court does not find any reason to interfere in the instant case. In the event the order of conviction is set aside by the higher forum, it will be open for the Petitioner to seek review of the order of punishment imposed upon him.

Relevant

Deputy Director of Collegiate Education (Administration), Madras vs. S. Nagoor Meera MANU/SC/0256/1995

Tags : Illegal Gratification Dismissal Legality

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