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Case Number

W.P No. 14488/89

Attorney(S)

Mr. S. Vijayarangan for the Petr.
Mr. T.P Arivudainambi, Government Advocate and Mr. S. Jayaraman for the Respts.

Judges

Bakthavatsalam, J.

Acts

S. 32(2) (b) of the Industrial Disputes Act,

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The petitioner, employed as a driver by the respondent transport corporation, was charged, tried and convicted by the District Judge, Q.M. District, Dindigul in Sessions Case No. 65 of 1985 and sentenced to life imprisonment. The petitioner filed Criminal Appeal C.A. No. 713 of 1985 before this Court, which was pending at the time of this writ petition; the petitioner had been granted conditional bail by this Court.

The petitioner alleges the following sequence concerning his employment: he was in service until 27-8-1985; convicted on 28-8-1985; not in service from 28-8-1985 to 27-9-1985; in service from 28-9-1985 to 22-11-1985; and placed under suspension from 23-11-1985. The petitioner was reinstated by the respondent Corporation by an order dated 25-2-1988.

On 24-7-1989 the petitioner applied to the corporation seeking treatment of the suspension period as on duty and payment of arrears (salary, bonus, Pongal gift, etc.). The corporation issued a show cause notice dated 2-9-1989 (issued on 6-9-1989) and, after receiving the petitioner's explanation (dated 12-9-1989), passed an order dated 12-10-1989 dismissing him from service. The petitioner challenged that order by the present writ petition (seeking quashing of order No. P.S.S No. 2191 dated 12-10-1989, reinstatement, and arrears).

The corporation filed a counter affidavit admitting the factual sequence, stating the petitioner was originally employed by Pandian Roadways Corporation and was suspended by that employer on 21-11-1985; after bifurcation into two corporations the petitioner became an employee of the second respondent (Rani Mangammal Transport Corporation). The corporation asserts it re-employed the petitioner by order dated 25-2-1988 subject to the result of the criminal appeal, and subsequently dismissed him in accordance with its Model Standing Orders. The corporation also described the conviction as involving moral turpitude and invoked its right to terminate service.

Legal Issues Presented

Whether the dismissal of the petitioner by the respondent Corporation on the basis of a conviction recorded by the Sessions Judge, while the criminal appeal (C.A. No. 713 of 1985) is pending before this Court, is valid in law.
Whether the petitioner's earlier reinstatement in 1988 operates as an estoppel preventing the corporation from dismissing him subsequently while the criminal appeal was pending.

Arguments of the Parties

Petitioner's Arguments (as presented by Mr. S. Vijayarangam)

The reasoning in the impugned order—that dismissal followed because the petitioner had not obtained a stay of the Sessions Judge's order—is unjustifiable.
The respondent Corporation misunderstood criminal law and the effect of the pendency of a criminal appeal and of the orders passed by this Court.
The pendency of the criminal appeal and the fact that the petitioner was on bail without any condition meant the petitioner should not have been dismissed; no interim stay of the criminal judgment was necessary to protect his employment.
The impugned order is bad because the corporation cannot dispute that Criminal Appeal No. 713 of 1985 is pending before this Court.

Respondent Corporation's Arguments (as presented by Mr. S. Jayaraman and in the counter affidavit)

The corporation had power to pass the impugned order under its Model Standing Orders and the dismissal was carried out in accordance with those Standing Orders.
Although the wording of the impugned order may be imperfect, the court should not interfere where the conviction and sentence by the Sessions Judge subsist as a matter of law.
The pendency of the criminal appeal does not entitle the petitioner to reinstatement; the conviction subsists until set aside by an appellate court.
The conviction involved moral turpitude and justified dismissal; therefore the petitioner's prayer for reinstatement pending the criminal appeal is not legally sustainable.
The respondent also drew attention to an ongoing industrial dispute and an application under S. 32(2)(b) of the Industrial Disputes Act (Application No. 147 of 1989) pending before the Industrial Tribunal (as a factual matter relevant to the broader context of employment relations and bonus fixation disputes).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Subbaraman v. The State, 1969 L.W. Crl. 270 (as cited in the opinion)	The opinion cites this decision for the proposition that a conviction begins to operate as soon as it is recorded and subsists until it is set aside by an appellate court or a court of revision.	The Court applied this principle to hold that the conviction recorded by the Sessions Judge remained effective while the criminal appeal was pending, and therefore the corporation's dismissal of the petitioner was valid in law.
Subbaraman v. The State, A.I.R. 1958 S.C. 86 (as cited in the opinion)	The opinion explicitly cites this authority and states the holding that a conviction operates from the time it is recorded and continues until set aside by an appellate court.	The Court relied upon the rule stated in this authority (as applied above) to conclude that the conviction was subsisting and justified the respondent's action in dismissing the petitioner.
U.P. State v. Mohamed Nooth (as cited in the opinion)	The opinion states that the view in Subbaraman was based upon the decision in U.P. State v. Mohamed Nooth; the opinion does not extract or state a specific separate rule from this decision within the text provided.	The Court noted that the Subbaraman decision (which it applied) was based upon this earlier decision; the opinion uses this connection to reinforce that the legal position relied upon is well-settled.

Court's Reasoning and Analysis

The Court first observed that the factual position was not in dispute: the petitioner had been convicted for murder by the Sessions Judge and the criminal appeal (C.A. No. 713 of 1985) was pending before this Court; the petitioner was on conditional bail.

The Court accepted that the impugned dismissal order was not "happily worded," but proceeded to address the legal effect of a conviction during the pendency of an appeal. The Court relied on the authority cited by the respondent (Subbaraman v. The State, A.I.R. 1958 S.C. 86 and the related citation), which it stated holds that a conviction operates from the time it is recorded and continues to subsist until set aside by an appellate court or a court of revision.

Applying that principle to the present facts, the Court concluded that because the conviction subsisted while the criminal appeal was pending, the respondent Corporation was justified in dismissing the petitioner in accordance with its Standing Orders. The Court expressly rejected the contention that the pendency of the appeal entitled the petitioner to reinstatement.

The Court also addressed the petitioner's reinstatement in 1988, holding that that reinstatement could not operate as an estoppel to prevent the corporation from subsequently dismissing the petitioner once it lawfully determined, in light of the subsisting conviction, to terminate his employment.

Finally, the Court declined to exercise its discretionary jurisdiction under Article 226 of the Constitution to interfere with the impugned order because it found the order to be "valid in law" in view of the subsisting conviction and the established legal principle cited.

Holding and Implications

Holding: The writ petition is dismissed. DISMISSED

Direct consequences:

The Court held the respondent Corporation's dismissal of the petitioner to be valid in law because the conviction recorded by the Sessions Judge subsisted during the pendency of the criminal appeal.
The petitioner's earlier reinstatement (dated 25-2-1988) did not estop the corporation from dismissing him subsequently on the basis of the subsisting conviction.
The writ petition was held to have no merits and was dismissed; the Court ordered no costs.

Broader implications:

The Court applied and reaffirmed the established principle (as stated in Subbaraman and identified antecedent decisions) that a conviction has operative effect from the time it is recorded and continues until set aside; the opinion treats this as settled law and does not purport to create or alter precedent.
The opinion indicates the Court's reluctance to exercise constitutional writ jurisdiction to override an employer's action that is otherwise permissible under standing orders when the employee's conviction subsists and has not been set aside by an appellate court.

No order as to costs was made.

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P. Muthusami v. The Government Of Tamil Nadu Rept. By The Secretary To The Govt., Transport Department, Fort St, George, Madras-9.

1. When the miscellaneous petitions came up for hearing, by consent of both parties, the main writ petition itself is taken tor final disposal.

2. The prayer in the writ petition is as follows:

“…to issue a writ of certiorarified mandamus or any other writ or order ordiretion in the nature of a writ calling for the records of the second respondent in his order No P.S.S No. 2191 dated 12-10-1989 and to quash the same to reinstate the petitioner in service and also to direct the respondents to pay the petitioner difference in pay, bonus, Pongal gift, etc. in pursuance of the peti tion giiven by the petitioner to the second respondent on 24.7-1989…”

3. The brief facts are: The petitionerherein was serving as a driver in the secondrespondent Corporation. He was involvedin a murder case and he was charge-sheeted. The petitioner herein was sentenced andconvicted by the learned District Judge, Q.M District, Fat Dindigul in a Sessions Case No. 65 of 1985, to undergo imprisonment forlife. Against the said judgment of the learned District Judge, Q.M District, the petitioner herein has preferred a Criminal Appeal in C.A No. 713 of 1985 before this Court and the same is pending. The petitioner herein was granted a conditional bail by this Court, The allegation of the petitioner is that after the date of the said occurrence on 10-11-1984, he was in service till 27-8-1985. The petitioner alleges that the learned Sessions Judge, Q.M District convicted him on 28-8-1985 for the charge of murder and after that date, he was not in service from 28-8-85 to 27-9-1985, but he was in service from 28-9-1985 to 22-11-1985. It seems that in view of the conviction imposed on him, the petitioner was placed under suspension from 23-11-1985. It is stated in the affidavit filed in support of the petition that he was reinstated by the second respondent Corporation by order dated 25-2-1988, that while he was working he applied on 24-7-1989 to the second respondent to treat his period of suspension as on duty, to pay (his salary for)the entire period of suspension, to pay bonus, pongal gift etc. At this stage, a show cause notice dated 2-9-1989 was issued on him on 6-9-1989 calling for his explanation to show why he should not be dismissed from service. It is alleged in the affidavit that he has submitted an explanation on 12-9-1989 stating that the Criminal Appeal No713 of 1985 filed by him is pending before this Court and that he has been on bail without any condition. It is alleged that on 12-10-1989 the impugned order has been passed by the respondent Corporation dismissing him from service.

4. It is alleged in the affidavit that the respondents have ignored the fact that the petitioner has preferred a Criminal Appeal against the judgment and sentence of the District Judge, Dindigul that the fact that he has been on bail without any condition and that he has got a fair chance of success in the said appeal and that he should not be removed from service during the pendency of the said Criminal Appeal. It is also stated in the affidavit that there is no moral turpitude involved in the said conviction that he was falsely implicated in the alleged murder that took place in the village on account of some family dispute, and that the show cause notice issued by the second respondent dated 2-9-1989 itself is liable to be set aside as it is a mala fide and it has not taken into consideration, the pendency of the Criminal Appeal. It is further alleged that the second show cause has been issued by the second respondent Corporation without properly understanding the purport of a criminal appeal and without knowing the fundamentals of Criminal law. It is also alleged in the affidavit that the suspension of sentence on appeal would mean stay of operation of the conviction and sentence of the order of the isarned Sessions Judge and as such the reason given in the impugned order that he has not obtained stay is not correct. It is also alleged in the affidavit that the respondent Corporation has not understood the effect of the pendency of the Criminal Appeal and the fact that the petitioner was on bail without any condition. It is also stated that he was in service even after the order of the learned District Judge, Dindigul. With these allegations, the petitioner has come up before this Court with the prayer as stated supra.

5. A counter affidavit has been filed by the second respondent, the Corporation. The facts are not disputed in the counter affidavit. It is also stated that the petitioner herein was originally employed as a driver ia the Pandian Roadways Corporation, that the erstwhile employer of the petitioner by its communication dated 21-11-1985 suspended the writ petitioner from service, that in the meantime the Pandian Roadways Corporation was bifurcated into Pandian Roadways Corporation and Rani Mangammal Transport Corporation, the second respondent herein, that the persons who gave their options to serve under the second respondent herein have become the employees of the second respondent and the petitioner is one among them. It is further claimed in the counter affidavit that when the petitioner made a representation on 8-6-1987 to the management of the second respondent herein with regard to the payment of subsistence allowance and re-employment of service, the second respondent Corporation after considering his representation thought it fit to reemploy him into service, subject to the result of the Criminal Appeal filed by the petitioner before this Court and an order was issued on 25-2-1988. It is also claimed in the counter affidavit that on 24-7-1989, the petitioner herein wrote a letter to the Management of the second respondent herein seeking for subsistence allowance arrears, increments and bonus etc. and that on 2-9-1939 the management of the second respondent issued a show cause to give explanations and after obtaining an explanation from the petitioner herein, on 12-9-1989 an order was passed by the respondent Corporation, which is impugned in this writ petition, dismissing the petitioner from service. It is further claimed in the counter affidavit that merely because a criminal appeal has been filed as against the judgment of the Sessions Judge, it does not mean that a punishment of conviction ceased to exist, that there is a dispute between the workmen and the management of the Transport Corporation with regard to the fixation of the quantum of bonus for the year 1981-82 is pending before the Industrial Tribunal, that the second respondent Transport Co poration had filed an application under S. 32(2) (b) of the Industrial Disputes Act, that the said application No. 147 of 1989 is pending before the Industrial Tribunal and as such the petitioner had been dismissed in accordance with the Model Standing Orders. It is also claimed in the counter affidavit that it is a clear case of moral turpitude, that the petitioner has been found guilty by the competent Court for which he has been convicted and that the management has got the right to terminate the services of the petitioner in accordance with the Standing Orders. It is submitted that the petitioner's allegation that the management has not properly understood the purport of criminal case was absolutely devoid of merit and was untenable. It is also stated that the petitioner's prayer for reinstatement pending the criminal case is not justified and the same cannot be sustained in law.

6. Mr. S Vijayarangam, the learned counsel appearing for the petitioner contends that the reasoning given in the impugned order, that since the petitioner has not obtained any stay of the order of the learned District Judge he has been dismissed from service, is not justifiable. The learned counsel also argues that the respondent Corporation has not understood the criminal law or the effect of the criminal appeal and the orders passed by this Court The learned counsel further states that no interim order of stay of criminal judgment could be obtained and that the impugned order was passed without understanding the fnndamentals of the criminal law. The learned counsel further states that the impugned order is bad on the ground that the respondent Corporation cannot dispute the fact that the criminal appeal in C.A No. 713 of 1985 is pending before this Court against the conviction passed by the learned Sessions Judge.

7. Per contra, Mr. S. Jayararaan, the learned counsel for the respondent Corporation contends that the Corporation has got the power to pass the impugned order under the Standing Orders, that though the reasoning given in the impugned order may be wrong, this Court should not interfere with it, when the judgment of the learned Sessions Judge and conviction are existing as on date. The learned counsel further contends that the pendency of the criminal appeal in C.A 713 of 1985 before this Court cannot entitle the petitioner to get reinstatement of the service and that the order of dismissal passed by the respondent Corporation is perfectly right under the Standing Orders of the Corporatiou. The learned counsel brings to my attention the decision in Subbaraman v. The State 1969 L.W Crl. 270., for this proposition.

8. After considering the arguments of Mr. S. Vijayarangam, the learned counsel appearing for the petitionar, Mr. P. Arivudai-nambi, the learned Government Advocate appearing for the State, and of Mr. S. Jayaraman, the learned counsel appearing for the respondent Corporation. I am of the view that the writ petition is wholly misconceived. The facts are not in dispute. The petitioner has been convicted for murder. The appeal C.A 713 of 1985 is pending before this Court and the petitioner has been let on bail with conditions. In my view, though the impugned order has not been happily worded, I think law is well settled. In the decision cited by the learned counsel for the respondent

Corporation, in Subbaraman v, The State A.I.R 1958 S.C 86., it has been held that conviction begins to operate as soon as it is recorded and that it subsists till it is set aside by an appellate court or a court of revision. The point raised in this case is whether the dismissal of the petitioner by the respondent Corporation on a conviction recorded by the learned Sessions Judge, Dindigul, while the criminal appeal CA. 713 of 1985 is pending before this Court, is valid under law. In the above mentioned case, the learned Judge has held that even when an appeal or a revision is pending, the conviction is alive and it does not cease to exist. Applying this principle to the facts of this case, I am of the view that the order of dismissal by the respondent Corporation is perfectly right. As I have already stated, though the impugned order is not happily worded, yet the sum and substance is that the said criminal appeal No. CA. 713 of 1985 is pending before this Court and it has been taken note of by the respondent Corporation before the impugned order was passed. The fact that the petitioner has been reinstated in the year 1988 cannot be taken as an estoppel. When the law is very clear and as such even from the fact that the petitioner was reinstated in the year 1988 in my view wrongly. As such, it cannot be said that the action of the authorities by retracing from the original stand and dismissing the petitioner from the services of the respondent Corporation is not valid in law, In my view, the impugned order is valid in law I do not think this Court should exercise the discretion under Art. 226 of the Constitution, when the impugned order is valid in law, in favour of the petitioner especially in a case where the petitioner has been convicted on a charge of murder and that it is subsisting. It can be seen the view of the learned Judge in the above mentioned case is based upon the decision in U.P State v. Mohamed Nooth. I see no reason to interfere with the order of the second respondent Corporation. There are no merits in the writ petition. Thewrtt petition will stand dismissed. However, there will be no order as to costs.

RR/vcs.

P. Muthusami v. The Government Of Ta...