IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.11.2008 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.4004 and 4005 of 1999 1. P.Pitchai (died) 2. Annie Bindusorna (substituted as per order dated 31.10.08 in WPMP.Nos.1618 & 1619/08). Petitioner in both WPs Vs. 1. Zonal Manager Life Insurance Corporation of India, Anna Salai, Chennai.2 2. Senior Divisional Manager, Life Insurance Corporation of India Divisional Office, Sellir, Madurai 2. ..Respondents in both WPs Prayer : Writ Petition No.4004 of 1999 under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus to call for the records of the 2nd respondent's letter dated 19.11.1998, and quash the same and direct the respondents to reinstate the petitioner with all backwages and benefits as available as Development Officer treating the petitioner with continuity of service till the date of his superannuation. Prayer : Writ Petition No.4005 of 1999 under Article 226 of the Constitution of India praying for a Writ of Certiorari to call for the records in respect of the order of the 2nd respondent's letter dated 09.05.1985 dismissing the petitioner from service and quash the same and direct the respondent to reinstate the petitioner in service with all the attendant benefits including backwages and other benefits as available to the petitioner. For Petitioner :: Mr.S.James For Respondents :: Mr.Silambannan, Senior Counsel for Mr.Umapathy COMMON ORDER Both the writ petitions are filed by the same petitioner. 2. W.P.No.4004 of 1999 is to set aside the order dated 19.11.1998 and for a further direction to reinstate the petitioner with all backwages as are available to the Development Officer treating the petitioner's service as one of continuous service till the date of his superannuation. Even at the time of the filing of the writ https://hcservices.ecourts.gov.in/hcservices/ petition, the petitioner was 65 years old and had already reached the age of superannuation. In W.P.No.4005 of 1999, the challenge is to the order dated 09.05.1985, by which the petitioner was dismissed from service. Both the writ petitions were admitted and notice was ordered to the respondents. The respondents also filed a common counter affidavit dated 28.10.2008 justifying the dismissal. 3. It is seen from the records that the petitioner was involved in a corruption case and he was charge sheeted for offences under Section 420 and 120B of IPC read with Section 5(i)(D) and 5(2) of the Prevention of Corruption Act, 1947. The Central Bureau of Investigation filed a criminal case against the petitioner before the Special Court, being Case No.3/79. The Special Court, convicted the petitioner and sentenced him to undergo rigorous imprisonment for 1 year on each count and it was also directed that the sentence should run concurrently. 4. The petitioner moved this Court against the said conviction in Crl.A.No.206 of 1985. The said appeal was admitted and in Crl.M.P.No.2067 of 1985, this Court suspended the sentence by an order dated 21.3.1985. It is at this stage, the respondents issued a show cause notice against the petitioner purporting to be under Regulation 39 of the LIC of India (Staff) Regulations, 1960. It is stated that since the petitioner had committed breach of trust and acted in a manner detrimental to the interests of the Corporation and prejudicial to the good conduct, thereby rendered himself unfit to be retained in the service of the Corporation. Therefore, taking note of the conviction made by the Criminal Court by the Special Judge, Madurai South, by Judgment dated 29.01.1985, the respondents proposed the penalty of dismissal from service in terms of the Regulation 39 (1)(g) r/w Regulation 39 ((4)(i) of the LIC of India (Staff) Regulations, 1960. The petitioner was asked to give reply to the show cause notice dated 16.04.1985. The petitioner by a reply dated 10.04.1986, stated that since the subject matter of conviction is pending appeal before this Court, in Crl.A.No.206 of 1985, and the petitioner's sentence was also suspended by this Court, the respondent Corporation need not proceed to the imposition of penalty. However, the 2nd respondent by an order dated 09.05.1985 passed a final order of dismissal in terms of Regulation 39(1)(g) r/w 39(4)(i) of the LIC of India (Staff) Regulations, 1960. It is stated that the suspension pending appeal cannot obliterate the conviction reached and the pendency of the criminal appeal had nothing to do with the departmental proceedings taken against the petitioner and therefore, the final order came to be passed. By a further order dated 08.07.1985, it was stated that the period of absence of the petitioner from duty during the period of suspension shall not be treated as period spent on duty. 5. The petitioner filed an appeal against the dismissal order by an appeal dated 24.04.1986 and the appellate authority by an order dated 11.11.1986 dismissed his appeal. In the appeal memo, the petitioner had stated in paragraph 7 that the respondents have not conducted any enquiry against the dismissal and that would violate the principles of natural justice. In response to the appeal grounds, it was stated by the appellate authority in the order dated 11.11.1986, which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ ".... However, the Staff Regulations governing the service conditions of the employee clearly stipulates that where an employee is convicted on a criminal charge, the Disciplinary Authority may consider the facts and circumstances of the case and pass such orders as it deems fit. Still, I find that the employee had been given an opportunity to show cause against the proposed order of the dismissal from service of the Corporation by means of the issue of a Show Cause Notice dated 16.04.1985. I, therefore, find that there is no irregularity in the procedure adopted by the Disciplinary Authority in dismissing Shri.P.Pitchai from the service of the Corporation. I also find that Shri.Pitchai has not brought out any fresh points for my consideration". 6. After the aforesaid order, the criminal appeal filed by the petitioner came to be allowed by this Court in Crl.A.No.206/85 dated 23.04.1998. In paragraphs 15 and 16, this Court made the following order:- "15. For the reasons stated above, I am of the opinion that the prosecution had not succeeded in proving the guilt of the appellant under section 120-B, 420 of Indian Penal Code read with sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947 and the conviction and sentence recorded by the learned Special Judge (First Additional Sessions Judge), Madurai, dated 29.01.1985 is liable to be set aside. 16. In the result, the appeal is allowed and the conviction and sentence imposed on the appellant is set aside and the appellant is directed to be set at liberty forthwith. The bail bond of the appellant stand cancelled". 7. After the acquittal in the criminal court, the petitioner sent a representation dated 08.09.1998 to the 2nd respondent stating that since he has reached the age of superannuation on 13.06.1991, he should be given all the benefits as are available to him under law. 8. In reply to this representation, the 2nd respondent by a reply dated 19.11.1998 stated that the question of payment of any wages as claimed by him does not arise in view of the said acquittal in the criminal case. Thus, these two orders gave rise to the two present writ petitions. 9. Mr.James, learned counsel for the petitioner submitted that the petitioner was not dealt with departmentally and the respondent LIC had taken advantage of the conviction by the Special Court for dismissing from service and once that conviction was set aside and the petitioner was acquitted of the charges, the petitioner is entitled for all benefits. He also relied upon the Regulation 39 under which the petitioner was dismissed from service. Regulation 39 https://hcservices.ecourts.gov.in/hcservices/ (1)(g) under which the petitioner was punished with dismissal and the said dismissal can be made for good and sufficient reasons by the disciplinary authority. 10. Regulation 39(4) of the LIC of India (Staff) Regulations, 1960 reads as follows: "4. Notwithstanding anything contained in sub-regulations (1) and (2) above:- (i) where a penalty is imposed on an employee on the grounds of conduct which had led to a conviction on a criminal charge; or (emphasis supplied) (ii) where the authority concerned is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in this regulation; or (iii) where an employee has abandoned his post, the disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit. * Explanation 1:- For the purpose of this regulation, an employee shall be deemed to have abandoned his post if he absents himself from duty without leave or overstays his leave for a continuous period of ninety days without any intimation therefor in writing". 11. Therefore, in the present case, it is not as if the respondent LIC had conducted any separate enquiry in respect of the misconduct in terms of the service regulations. On the contrary, the respondent had taken advantage of the initial conviction made by the Special Court and there is no other material other than the conviction made by the trial Court. 12. In fact, in paragraph 2 of the common counter affidavit, it is stated that the question of holding domestic enquiry does not arise as the petitioner had not replied to the charges enumerated in the show cause notice issued to him. If this is the stand of the respondent for not conducting enquiry, it really passes ones comprehension as to how the respondent can take advantage of the so called conviction which does not survive any longer on record. If for any reason the employee does not co-operate with the enquiry or do not submit any explanation to the charges, the regulations are not helpless. The respondent can always proceed in the absence of a charge sheeted employee with an ex parte domestic enquiry. On the contrary, after giving show cause notice, instead of going ahead with a departmental enquiry, it is the respondent LIC which took advantage of the conviction made by the Criminal Court and then dismissed him from service by invoking Regulation 39(4). Therefore, it is not now open to them to state that they were unable to conduct an enquiry. Even Regulation 39(4) contemplates the authority concerned if he is satisfied for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure, can dispense with the enquiry. Such a stand is not taken by the LIC and there is no order by a competent authority dispensing with the enquiry against the https://hcservices.ecourts.gov.in/hcservices/ petitioner. 13. In this context, it is relevant to refer to the decision of the Supreme Court in Deputy Director of Collegiate Education (Administration), Madras vs. S.Nagoor Meera reported in (1995) 3 SCC 377. The following passage found in paragraphs 9 and 10 may be usefully referred to. "9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant- accused is acquitted on appeal or other proceeding, the order can always be revised 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......". 10. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice". 14. Per contra, Mr.S.Silambannan, learned senior counsel appearing for the respondent LIC submits that the petitioner's acquittal was not honourable and therefore they can still rely upon the findings recorded by the criminal court and consequently only in case where an employee is acquitted honourably, the question of revising the dismissal order based upon the conviction arise and in the present case there is no such acquittal which obliges the respondent LIC to consider the subsequent acquittal. In this context the learned Senior Counsel relied upon the following decisions of the Supreme Court as well as the Judgment of this Court:- (1) Jasbir Singh vs. Punjab & Sind Bank and Others reported in (2007) 1 Supreme Court Cases 566. (2) Pandiyan Roadways Corpn. Ltd. vs. N.Balakrishnan reported in (2007) 9 Supreme Court Cases 755. (3) Managing Director, State Bank of Hyderabad & Anr. vs. P.Kata Rao reported in AIR 2008 Supreme Court 2146 and https://hcservices.ecourts.gov.in/hcservices/ (4) K.Dakshinamoorthy vs. Chief Engineer (General) Tamil Nadu Highways Department, Chepauk, Chenni and Another reported in (2006) 3 M.L.J.452 (Madras 33)". 15. In the first decision Jasbir Singh's case the question came up for consideration was whether the employer Bank can take any of the findings of the competent Civil Court regarding the employee committing any embezzlement. In that case, the bank did not prove the charges before any Court and the Civil suit attained finality. In the absence of the employer bank failing to prove the charge of embezzlement, there was no material to hold that the employee was guilty. When the matter was under challenge, the High Court failed to take note of the decision of the Civil Court and therefore the Supreme Court took exception to the findings of the High Court and the orders of the High Court was set aside on the basis of the Judgment of the Civil Court and Criminal Court. 16. In Pandiyan Roadways Corporation case, the question whether under the Standing Order whether the employer is bound to take note of the past conduct of an employee came up for consideration. In paragraph 11, it is observed as follows:- "11. Clause 17(5) of the Standing Orders of the Corporation reads as under: "17(5). In awarding the punishment under this Standing Order the employer shall take into account the gravity of the misconduct, the previous record of the workman and any other extenuation or aggravating circumstances that may exist". On a plain reading of the said provision and particularly in view of the fact that the word "shall" has been used, prima facie it would be construed to be imperative in character. It may, however, be held to be directory in certain situation. While construing a statute of this nature, the context plays an important role. Interpretation of a statute would also depend upon the fact situation obtaining in the case. There are, however, certain exceptions to the said rule....." 17. In Managing Director, State Bank of Hyderabad's case 3rd cited, was a case preceded by an enquiry as well as criminal court Judgment and thereafter it was argued that the criminal Court has acquitted the employee by giving benefit of doubt and acquittal by a criminal Court is not a bar for an employer from dismissing the employee keeping in view of the fact that the employee is required to maintain strict integrity. In the present case no such enquiry has been held and the question of referring to the decision in the State Bank of Hyderabad's case does not arise. In the present case, the LIC had solely relied upon the Judgment of the trial Court in dismissing the petitioner from service. https://hcservices.ecourts.gov.in/hcservices/ 18. In the same way, in Dakshinamoorthy's case, this Court held that both the Criminal Court and the Motor Accident Claims Tribunal have found that the worker was not responsible for the accident and therefore the charge memo issued by the employer was held to be vitiated factor. 19. It is not clear as to how these Judgments will in any way helpful to the respondent LIC. On the contrary, as directed by the Supreme Court in S.Nagoor Meera's case cited above, once the employer waits for the outcome of the criminal Court and finally by the appellate Court the conviction is set aside, then it is for them to review the order passed earlier, taking note of the Court's order acquitting the employee. 20. In such circumstances, the writ petition will stand allowed. The respondent LIC is directed to consider granting the petitioner all the benefits in accordance with the service regulations, after taking note of the acquittal of the petitioner by this Court in the Criminal Appeal filed by him. 21. Considering the fact that the petitioner is now no more, the respondent LIC shall pass orders within a period of four weeks and pay all the dues towards the petitioner to the family members of the petitioner within a period of eight weeks from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rg To 1. Zonal Manager Life Insurance Corporation of India, Anna Salai, Chennai.2 2. Senior Divisional Manager, Life Insurance Corporation of India Divisional Office, Sellir, Madurai 2. 1 cc To Mr.S.Silambanan, Advocate, SR.61839 1 cc To Mr.S.James, Advocate, SR.61715 W.P.Nos.4004 and 4005 of 1999 SJ(CO) SRA(12/11/2008) https://hcservices.ecourts.gov.in/hcservices/