36. A conduct not in the course of employment cannot be a misconduct.
Similarly,
a conduct which is not misconduct as per conduct rules cannot be the subject
matter of disciplinary action against a government servant. (In this case
convicted for a domestic quarrel. Action under rule 19(1) CCA Rules struck
down).
Krishnan Kutty XSSPOs 1975 KLT 503 H.C
37. A dignified protest cannot be condemned
Protest
silent march was held by the employees during break hours when there were no
classes, on two days, despite warning by the Principal, but there were no
speeches, no chanting or shouting of slogans, no violence and disruption of
studies. The Supreme Court held it a dignified protest which should evoke
sympathy. The Court observed -
“The
behaviour of the teachers appears to have been orderly and exemplary. One would
have thought that the teachers were, by their silent and dignified protest,
setting an example and the soundest of precedents to follow to all agitators
everywhere." (para 19, AIR)
It
was wrong to pass orders of suspension of employees.
[Frank Anthony P.S. E. Assn. v. Union of
India, (1987)1 SCR 238: AIR 1987 SC 311]
38.
There is no moral or equitable justification to go on strike
"Apart
from statutory rights, Government employees cannot claim that they can take the
society at ransom by going on strike. Even if there is injustice to some
extent, as presumed by such employees, in a democratic welfare State, they have
to resort to the machinery provided under different statutory provisions for
redressal of their grievances. Strike as a weapon is mostly misused which
results in chaos and total maladministration."
[T.K. Rangarajan v. Government of Tamil Nadu,
2003 AIR SCW 3807, para 20).
39.
Where demonstration is peaceful, outside office hour and for a genuine cause,
violation of prohibitory orders may not be taken that seriously
The
three appellants along with 27 others had gone in a procession, in spite of
prohibitory order, to represent, to the Supdt. of Police at his residence,
their grievance of inadequate accommodation and other facilities not provided
to them. That was done after their duty was over in the evening. For the making
of such representation and for violating the prohibitory order, an inquiry was
conducted against the three appellants who had taken initiative and led the
procession, and they were dismissed from service. The order of dismissal was
confirmed in appeal. The High Court had upheld the order. On appeal, the
Supreme Court set aside the order of the High Court and the penalty of
dismissal imposed on them. However, the Supreme Court directed the respondents
to impose the penalty of stoppage of one increment without cumulative effect.
They were also held entitled to re-instatement with all the consequential
benefits. The Hon'ble Court observed:
"It
is true that the appellants are disciplined members of the police force. The
grievance of inadequate accommodation provided to them is a legitimate
grievance to be represented to the officer for its redressal. No doubt,
prohibitory order was issued and there is violation thereof; however, the
appellants marched peacefully to make their representation. Under these
circumstances, it cannot be said that they have committed misconduct warranting
extreme penalty of dismissal from service.”
[Bishan
Singh v. State of Punjab, 1997 Lab. IC (SC) 2658]
40. Unauthorised absence
Order of dismissal invalid
The Punjab and
Haryana High Court in the case of ex. Constable Balwant Singh v. State of Haryana,
reported in A.T.J. 1999 (2) p. 113, has held that when the employee was under
treatment for ulcer in a hospital during the period of absence, such absence
from duty cannot be said to be the gravest misconduct. The High Court,
therefore, held the order of dismissal from service was not warranted. The
punishment order was quashed and reinstatement ordered.
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