STATE OF M.P. AND ORS.versusR.N. MISHRA AND ANR.

                           STATE OF M.P. AND ORS.                                    A
                                           v.
                            R.N. MISHRA AND ANR.

                              SEPTEMBER 17, l997

                 [K. VENKATASWAMI AND V.N. KHARE, JJ.]                               B


         Service Law :

          Misconduct-Forest Range Officer committed misconduct-Preliminary
    inquiry initiated-Pending Inquiry officer promoted-On completion of inquiry      C
    punishment of withholding of two increments imposed-Tribunal held that on
    promotion the misconduct stood condoned-Held, promotion could not amount
    to condonation of misconduct-Punishment imposed was valid and legal.


I
          The respondent-Forest Range Officer committed certain acts of              D
    misconduct and a preliminary inquiry was initiated against him. While the
    preliminary inquiry was in progress, he was promoted as Assistant
    Conservator of Forest. Later, a charge-sheet was served on him. After due
    inquiry the appellant-State Government inflicted penalty by withholding two
    increments of the respondent. The original application filed by the respondent
    before the Administrative Tribunal was allowed, on the ground that by            E
    promoting the respondent, the allegations of misconduct against him stood
    condoned. Hence the present appeal by the Government.

          The contention of the appellant was that by promoting the respondent to
    the post of Assistant Conservator of Forest, the allegation of misconduct        F
    against him, which is the subject matter of inquiry, in law, cannot be treated
    as condoned.

         Allowing the appeal, this Court

         HELD : I.I. The promotion of the respondent to the Assistant                G
    Conser'l'3torofForest would not amount to condonation of misconduct alleged
    against him which was the subject matter of preliminary inquiry. The
    punishment imposed on the respondent by the State Govt. was valid and legal
                                                                          (150-B]

          B.C. Chaturvedi v. Union of India and Others., [1995] 6 sec 749,           H
                                         145
      146                      SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

' A   relied on.

            Lal Audhraj Singh v. State of MP., AIR (1967) M.P. 284, held in
      applicable.

            1.2. The officer being governed by statutory rules, or provisions of an
 B    Act, under law the State Government had no option but to consider the Case
      of respondent for promotion. The State Government could not have excluded
      the respondent from the zone of considerations, merely on the ground that a
      preliminary inquiry to inquire into the allegations of misconduct attributed
      to him was pending. (149-G-H; 150-A)

 c          New Bank ofIndia v. NP. Sehgal and Anr., J.T. (1991) 1 499, relied.on.

            1.3. An employee/officer who is required to be considered for promotion,
      despite the pendency of preliminary inquiry or contemplated inquiry against
      him is promoted, having been found fit, the promotion made would not amount
 D    to condonation of misconduct which is subject matter of the inquiry. (149-F)
                                                                                        \
           District Council, Amraoti through Secretary v. Vithal Vinayak Bapat,
      AIR (1941) Nagpur 125, referred to.

           Labor and Labor Relations (48 Am Jr. 2d 636) and L. W Middleton v.
 E    Harry Play/air, AIR (1925) Cal. 87, referred to.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3972of1994.

          From the Judgment and Order dated 23.4.93 of the Madhya Pradesh
      Administrative Tribunal, Jabalpur in O.A.No. 492of1989.

 F          Sakesh Kumar, Charu Singhal and S.K. Agnihotri for the Appellants.

            Shiv Sagar Tiwari for the Respondents.

            The Judgment of the Court was delivered by

 G           V.N. KHARE, J. In the year 1974-75, the respondent herein was posted
      as Forest Range Officer in Majhgawan Range, Forest Circle Satna. (M.P.)
      when he was alleged to have committed certain acts of misconduct.
      Consequently, in the year 1976 a preliminary inquiry was initiated to inquire
      into the allegations against the respondent. On 7th April, 1977, the respondent
      was promoted as Assistant Conservator of Forest, while the preliminary
 H    inquiry was in progress. A charge-sheet was issued on 12.7.1982, and served
                  STATE v. R.N. MISHRA (V.N. KHARE, J.]                     147
upon the respondent, who was required to submit his explanation thereto. A
The charges contained in the Charge-sheet related to the year 1974-75 when
the respondent was posted as Forest Range Officer in Majhgawan Range,
District Satna (M.P.). After due inquiry, the State Government by an order
dated 26th September, 1986, inflicted penalty on the respondent by withholding
his two increments. The respondent appealed against the said order. During B
the pendency of the said appeal, the respondent filed original Application
before the Madhya Pradesh Administrative Tribunal (for short "the Tribunal")
for setting aside the order dated 26th September, 1986 whereby his two ·
increments were withheld.

       The Tribunal, being of the opinion that by promoting the respondent         C
to the Post of Assistant Conservator of Forest in the year 1977, the allegations
of misconduct attributed to the respondent stood condoned and as such, the
penalty imposed upon him by the impugned order dated 26th September, 1986
was without jurisdiction. The Tribunal accordingly set aside the order dated
26th September, 1986 passed by the State Government and allowed ·the
Application of the respondent. Aggrieved by the judgment and order dated           D
23.4.1993 passed by the Tribunal in 0.A.No.492/89, the State Government has
come up in appeal before this Court.

      Learned counsel for the api:iellants urged that the principle of
condonation of misconduct under the ordinary !aw of Master and Servant is
not applicable where in law the appointing authority is required to consider       E
the case of an employee for promotion despite the pendency of preliminary
inquiry against him and the employee is promoted to higher post having
found fit for promotion. In short, the argument is, that by promoting the
respondent to the post of Assistant Conservator of Forest, the allegation of
misconduct against him, which is the subject matter of inquiry, in law, cannot     p
be treated as condoned.

      Before we advert to the argument of the learned counsel for the
appellant, it may be seen as to what is the doctrine of condonation of
misconduct under the ordinary law of Master and Servant. Under ordinary law
of Master and Servant, an employer has option to punish an erring employee G
on the ground of misconduct committed by him, but the employer if voluntarily
elects not to take any action to punish the delinquent officer then it would
be a case of Condonation of Misconduct by the master. In Labor and Labor
Relations, [48 Am Jr .. 2d 636)-it is stated thus :

     "636.--Condonation of misconduct.                                             H
    148                     SUPREM~ COURT REPORTS [1997] SUPP. 4 S.C.R.


A               The doctrine of condonation prohibits an employer from .
            misleadingly agreeing to return his employees to work and then taking
            disciplinary action for something apparently forgiven. (Packers Hide
            Assa. v. NLRB (CAB) 360 F2d 59). Condonation can be found, however,
            only where there is clear and convincing evidence that the employer
            has completely forgiven the guilty employee for his misconduct and
B           has agreed to a resumption of the employer-employee relationship as
            though no misconduct had occurred. [Packers Hide Assa. v. NLRB,
            (supra)].

    In L. W. Middleton v. Harry Play/air, AIR ( 1925) Cal. 87 at p. 88, it was held
C thus :
            "If a master on discovering that his servant has been guilty of
            misconduct which would justify a dismissal, yet elects to continue him
            in his service, he cannot at any subsequent time dismiss him on
            account of that which he has waived or condoned."
D   In District Council, Amraoti through Secretary v. Vithal Vinayak Bapat, AIR
    (1941) Nagpur 125, it was held that:

            "Once a master has condoned any misconduct on part of servant
            which would have justified dismissal or a fine, he cannot, after such
E           condonation, go back upon his election to condone and claim a right
            to dismiss him or impose a fine or any other punishment in respect
            of the offence which has been condoned."
                                               •
           The substance of the decisions cited above is that under ordinary law
    of Master and Servant once an employer has condoned any misconduct
F   attributed to an employee, which have otherwise justified his dismissal or
    punishment, the employer cannot after such condonation go back upon his
    election to condone and assert a right to punish the servant. But, the question
    that arises for consideration in the instant case is, whether the doctrine of
    condonation of misconduct under ordinary law of master and servant can be
G   pressed into service where an employee is governed by statutory rules, and
    under law the employer is required to consider the case of an employee for
    promotion against whom a preliminary enquiry is pending. To begin with
    when there is an offer and acceptance of an appointment, the relationship
    between the employee and Government may be contractual, but once an
    employee is appointed, he acquires a status, as his eonditions of service are
H   regulated by statutory rules or provisions of an Act. Under law, government
                  STATEv. R.N. MISHRA [V.N. KHARE, J.)                     149
is not justified in excluding an employee from the field of consideration for     A
promotion merely on the ground that certain disciplinary proceedings are
contemplated or some preliminary inquiry to inquire into the misconduct
attributed to that employee are pending. In New Bank of India v. N.P. Sehgal
and Anr., J.T. (1991) 1 499, it was held by this Court, thus:

       " ...... the mere fact that disciplinary proceedings are contemplated or   B
       under consideration against an employee does not constitute a good
       ground for not considering the employee concerned for promotion if
       he is in the zone of consideration nor would it constitute a good
       ground for denying the promotion if the employee is considered
       otherwise fit for promotion."                                              C
In B.C. Chaturvedi v. Union of India and Others, (1995] 6 SCC 749 at page.
757 this Court held as follows :

       "It is true that pending disciplinary proceeding, the appellant was
       promoted as Assistant Commissioner of Income tax. Two courses in           D
       this behalf are open to the competent authority, viz., sealed cover
       procedure which is usually followed, or promotion, subject to the
       result of pending disciplinary action. Obviously, the appropriate
       authority adopted the latter course and gave the benefit of promotion
       to the appeilant. Such an action would not stand as an impediment
       to take pending disciplin8ry action to its logical conclusion The          E
       advantage or promotion gained by the delinquent officer would be no
       impediment to take appropriate decision and to pass an order consistent
       with the finding of proved misconduct."

       In view of these decisions, it must be held that an employee/officer who
is required to be considered for promotion, despite the pendency of preliminary   F
inquiry or contemplated inquiry against him is promoted, having found fit, the
promotion so made would not amount to condonation of misconduct which
is subject matter of the inquiry.

       In the present case, misconduct attributed to the respondent came to       G
light in the year 1976 when a preliminary enquiry was ordered and while the
inquiry was continuing, the State Government was required to consider the
case of the respondent for promotion to the post of Assistant Conservator
of Forest. Under law, the State Government had no option but to consider the
case of the respondent for promotion. The State Government could not have
excluded the respondent from the zone of consideration, merely on the ground      H
    150                      SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A that a preliminary inquiry to enquire into the allegations of misconduct
    attributed to him was pending. In such a situation, the doctrine of con donation
    of misconduct cannot be applied as to .wash off the acts of misconduct which
    was the subject matter of preliminary enquiry. We are, therefore, of opinion
    that the promotion of the respondent to the post of Assistant Conservator
    of Forest would not amount to condonation of misconduct alleged against
B   him which was the subject matter of preliminary inquiry. Consequently, the
    punishment imposed on the respondent by the State Government was valid
    and legal. The decision relied upon by the Tribunal as well as by learned
    counsel for the respondent in the case of Lal Audhraj Singh v. State of M.P.,
    AIR (1967) M.P. 284 is not applicable to the facts of the present case, as in
C   that case, the employer had a choice to inflict punishment on the employee
    but the employer did not choose to punish the employee and in that context,
    it was held by the High Court that the misconduct attributable to the employee
    was condoned.

          For the foregoing reasons, the judgment and order dated 23.4.1993
D passed by the Madhya Pradesh Administrative Tribunal in 0.A. No.492/89;
    is set aside and the present appeal allowed. There shall be no order as to
    costs.

    S.V.K.l.                                                      Appeal allowed.