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2014 DIGILAW 3176 (MAD)

C. Jayaraj v. Director of Sugars

2014-09-08

D.HARIPARANTHAMAN

body2014
Judgment : 1. The petitioner is an ex-serviceman. After rendering about 20 years of service in Indian Army, he joined service as a Security Guard in the second respondent Sugar Mills on 09.06.1997. 2. The petitioner faced a criminal proceedings before the learned District Sessions Judge, Dharmapuri Fast Track Court in S.C.No.271 of 2002 and he was convicted by an order dated 26.04.2005 for the offence under Section 304(2) IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.2000/- in default to undergo three months simple imprisonment. Subsequently, the petitioner was taken to judicial custody and hence, he did not join duty from 28.04.2005. 3. While so, a show cause notice dated 11.08.2005 was issued by the second respondent asking the petitioner to show cause as to why he cannot be dismissed from service, since he committed misconduct under clause 33(21) and 33(53) of the Standing Orders of the second respondent Sugar Mills. Clause 33(21) and Clause 33(53) of the Standing Orders are extracted hereunder: “33 (21) Habitual absence without leave or absence without leave for more than ten consecutive days or not reporting for work within ten days after the expiry of leave granted. 33 (53) Conviction by any court of law for any criminal offence involving moral turpitude.” 4. Since the petitioner did not give any explanation to the above said show cause notice, he was straight away dismissed from service by the second respondent by an order dated 14.09.2005 on the ground that he was convicted by a Criminal Court. 5. Thereafter, the petitioner made an appeal dated 16.11.2005 to the first respondent. The first respondent is the Director cum Registrar of Co-operative Sugar Mills. Hence, his appeal can be taken as a revision under Section 153 of the Tamil Nadu Co-operative Societies Act. 6. The first respondent rejected the appeal preferred by the petitioner vide order dated 19.04.2006 on the ground that he was dismissed from service based on the conviction by a Criminal Court. 7. That is, though the dismissal order was based on both Clause 33(21) and 33(53) of the Standing Orders, the Revisional Authority confined the dismissal order to Clause 33(53) of the Standing Orders. 8. In my view, the Revisional Authority was correct in coming to such conclusion. For dismissing the petitioner based on conviction by a Criminal Court, no departmental enquiry is necessary. 8. In my view, the Revisional Authority was correct in coming to such conclusion. For dismissing the petitioner based on conviction by a Criminal Court, no departmental enquiry is necessary. But, if action is taken under Clause 33(21) of the Standing Orders, it requires departmental action and regular departmental enquiry. In this case, admittedly no departmental enquiry was held. In fact, the absence was due to his custody pursuant to the conviction by a Criminal Court. 9. At this juncture, it is relevant to extract Clause 34 of the Standing Orders, which reads as follows : “34. PUNISHMENT FOR MISCONDUCT: 1.a. Warning or Censure b. Fine as per the provisions of the Payment of Wages Act, 1936. c. Suspension without wages for a period not exceeding thirty working days. d. With-holding of increments e. Demotion f. Discharge g. Dismissal 2 (a) Where disciplinary proceedings against a workman is contemplated or is pending or where criminal proceedings against him in respect of any offence are in progress and the Management is satisfied that it is necessary or desirable to place the workman under suspension pending enquiry, the management may, by an order in writing suspend the workman with effect from such date as may be specified in the order. A statement stating out in detail the reasons for such suspension shall be supplied to the workman within a week from the date of suspension. (b) A workman who is placed under suspension under clause (a) shall during the period of such suspension be paid subsistence allowance as per the Tamilnadu Payment of Subsistence Allowance Act, 1981. The workman shall not be entitled to any subsistence allowance if he accepts any other employment during the period of suspension pending enquiry. (c) If, on conclusion of the enquiry or as the case may be of the criminal proceedings, the workman has been found guilty of the charges framed against him and if an order of dismissal, discharge, suspension, demotion, stoppage of increment, fine or warning would meet the ends of justice, the Management shall pass an order accordingly. Provided that when an order of dismissal is passed under this clause, the workman shall be deemed to have been dismissed with effect on and from the date of suspension pending enquiry or from any other date indicated in the order of dismissal and shall not be entitled to wages for such period. Provided that when an order of dismissal is passed under this clause, the workman shall be deemed to have been dismissed with effect on and from the date of suspension pending enquiry or from any other date indicated in the order of dismissal and shall not be entitled to wages for such period. (d) If, on the conclusion of the enquiry, or as the case may be of the criminal proceedings, the workman has been found to be not guilty of the charges framed against him he shall be deemed to have been on duty during the period of suspension pending enquiry and shall be entitled to the same wages as he would have received if he had not been placed under suspension pending enquiry after deducting the subsistence allowance paid to him for such period. 3. Any workman who is facing an enquiry if he desires, can make a written request to the enquiry officer for allowing a co-workman as an observer in the enquiry. 4. In awarding the punishment under the Standing Orders, the Mill shall take into account the gravity of the misconduct, previous record of the workman, if any, and any other extenuating or aggravating circumstances that may exist. 5. The order passed by the Management shall be served on the workman concerned. If it is not possible to serve on him or if it is refused by him, the same may be sent by post to the last address made available the workman which will be deemed as a sufficient Notice.” 10. As per Clause 34(2)(c), if the criminal case ends in conviction, the workman could be straight away removed from service, without any enquiry. On the other hand, if the workman is acquitted of the charges, he will be restored to duty with all wages as per Clause 34 (2)(d) of the Standing Orders. 11. The revision of the petitioner was rejected on the ground that the dismissal was based on the conviction by the Criminal court. The Revisional Authority has also held that since the petitioner was released on bail, he could not got reinstatement and he could get reinstatement only if the conviction is set aside in a Criminal Appeal. 12. The Criminal Appeal preferred by the petitioner in Crl.A.No.399 of 2005 was allowed by this Court on 19.01.2012. 13. The Revisional Authority has also held that since the petitioner was released on bail, he could not got reinstatement and he could get reinstatement only if the conviction is set aside in a Criminal Appeal. 12. The Criminal Appeal preferred by the petitioner in Crl.A.No.399 of 2005 was allowed by this Court on 19.01.2012. 13. Thereafter, the petitioner made a representation dated 20.03.2012 to the respondents to reinstate him in service. But his request was rejected by the second respondent vide order dated 03.09.2012 on the sole ground that there is no vacancy in the second respondent Sugar Mills. 14. In these circumstances, the petitioner has filed this writ petition seeking direction to reinstate him in service with all backwages and other monetary benefits. 15. Heard both sides. 16. In my view, the second respondent is not correct in its order dated 03.09.2012 that since there is no vacancy, he could not be reinstated in service with benefits. It is a different matter, if the petitioner sought for fresh employment. On the other hand, the petitioner joined in the second respondent Sugar Mills in 1997 after he was discharged from the Indian Army and worked in the second respondent Sugar Mills for about 8 years. Thereafter, he was dismissed from service based on conviction. Therefore, the second respondent could not deny employment on the ground that there is no vacancy. As rightly stated by the first respondent in his order dated 19.04.2006 that the conviction being set aside by this Court in Criminal Appeal, the petitioner is entitled to reinstatement with all benefits including backwages. 17. From the affidavit, it is seen that the petitioner reached 58 years. It is not known as to whether he reached the age of superannuation as on today. If he reached the age of superannuation, the second respondent is directed to provide wages from the date of removal, until the date of his superannuation and also pay the terminal benefits within a period of eight weeks from the date of receipt of a copy of this order. On the other hand, if he has not reached the age of superannuation, the second respondent is directed to reinstate him in service within a period of two weeks from the date of receipt of a copy of this order and pay backwages, within a period of eight weeks thereafter. 18. On the other hand, if he has not reached the age of superannuation, the second respondent is directed to reinstate him in service within a period of two weeks from the date of receipt of a copy of this order and pay backwages, within a period of eight weeks thereafter. 18. The writ petition is disposed of in the above terms. No costs. Consequently, connected miscellaneous petitions are closed.