K.K. Narendran, J.
1. The petitioner in this Original Petition, who was a postman in the Posts and Telegraphs department from 1961 onwards was dismissed from service under Rule 19(i) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short, the Rules) consequent on his conviction on a criminal charge. The question that arises for consideration is whether the conduct which has led to his conviction should be a conduct in the course of his employment to attract Rule 19(i) of the Rules, The petitioner joined the Posts and Telegraphs department as a messenger in the year 1951 and from 19G1 onwards he was working as a permanent postman. The 1st respondent-Senior Superintendent of Post Offices, Ernakulam Division by Ext. P1 order dated 1-5-1971 removed the petitioner from service with effect from 30-4-1971. Ext. P1 was issued by the 1st respondent in exercise of the powers conferred upon him by Rule 19(i) of the Rules because the petitioner was convicted on a criminal charge under Section 323, Indian Penal Code, Against Ext. P1 the petitioner filed an appeal on 10-8-1971 to the 2nd respondent-Post Master General, Trivandrum. The petitioner was informed later that the 3rd respondent-Director of Postal Services. Kerala Circle, Trivandrum is the proper authority before whom the appeal was to be filed, and the appeal was submitted to the 3rd respondent on 13-10-1971. The 3rd respondent by Ext. P4 memo dated 26-4-1973 dismissed the petitioner's appeal as time-barred. The petitioner questions Exts. P1 and P4 in this original petition,
2. The petitioner was removed from service by Ext. P1 order because of his conviction on a criminal charge. The charge against him which led to his conviction was that oil 21-6-1967 at about 6-30 p.m. the petitioner along with his sister and her husband trespassed into the court-yard of the house of his step-brother situated within 50 ft. of his house and beat him causing several injuries. His step-brother was coming to his own house with a jack fruit and he then noticed the petitioner's sister passing stool in a ditch close to his own house. A quarrel arose when the stepbrother questioned the petitioner's sister about her improper act. Blows were exchanged and the step-brother was injured. A case was charged against the petitioner, his sister and her husband. The Additional First Class Magistrate, Ernakulam convicted the petitioner under Section 326, I.P.C., and sentenced him to undergo rigorous imprisonment for three months. Against the above conviction and sentence the petitioner and the other accused went in appeal and the Sessions Judge, Ernakulam by Ext. P2 judgment set aside the conviction under Section 326, I.P.C., and convicted the petitioner and the other accused under Section 323, I.P.C., and sentenced them to pay a fine of Rs. 50 and in default to undergo simple imprisonment for one month. It was after Ext. P2 judgment that the 1st respondent issued Ext. P1 order removing the petitioner from service with effect from 30-4-1971.
3. The main contention taken in the original petition is that the respondents were hypertechnical and they did not consider the petitioner's appeal on merits. The delay in filing the appeal has also been explained in the original petition, The stand taken by the petitioner is that the criminal case arose out of a family scuffle and it was not something which happened in the course of his employment.
4. A counter-affidavit has been filed on behalf of the respondents by 1st respondent. The statement in para 5 of the counter-affidavit is that Ext. P1 removal order was under Rule 19(1) of the Rules and hence it is not correct to say that the order was on the basis of the conviction itself. The appeal of the petitioner was time-barred. The action against the petitioner was taken only alter the petitioner's appeal was disposed of by the Sessions Judge by Ext. P2 order. Not only that the appeal was time-barred but no reasons were given in appeal for the delay caused.
5. When the original petition came up for hearing on 30-1-1975, it came to the notice of the Court that the petitioner had not signed the original petition or the affidavit in support of the same and hence the case was adjourned. The petitioner who was ill then, could come to Court only on 12-3-1975. He was permitted to sign the original petition and to swear to the affidavit in open Court in the presence of his counsel and thereafter the petitioner's counsel argued the case.
6. Shri K.R.B. Kaimat, learned Counsel for the petitioner, contends that Rule 19 of the Rules is an exception and only when the conviction is on a misconduct in the course of the employment, the powers under Rule 19 of the Rules can be resorted to. The procedure for taking disciplinary action against an employee is the one laid down by Rules 14 to 18, and Rule 19 which says that the above procedure can be dispensed with is a fetter on the rights of the employee. Learned Counsel points out though under the common law of master and servant, an employer had the unfettered freedom to dispense with the services of his employee, this common law principle is modified by statute law imposing restrictions. In view of the restrictions imposed by statute law from time to time, it has become impossible for an employer to dispense with the services of his employee without reasonable cause. Learned Counsel refers to the decision in Salem Shevapet Sri Venkateswara Bank Ltd. v. Krishnan [1959-II L.L.J. 797]. In the above decision, Rajagopala Ayyangar, J. (as he then was) observed:
Though at common law the right of an employer to discharge a servant on giving him notice or wages in lieu is unfettered, the statute effects a change in this right and requires in addition to notice for the contractual period that there should be reasonable cause for the discharge.
When no notice or wages in lieu of notice is given and the discharge or dismissal is effected for misconduct on the part of the servants, the statute enacts a greater degree of protection to the employee and insists on the charge of misconduct being held to be proved by satisfactory evidence recorded at an enquiry held for the purpose.
Misconduct inconsistent with the due and faithful discharge by the servant of the duties for which he was engaged is good -cause for dismissal at common law. The common law, however, does not insist on an enquiry before dismissal and the master is entitled to justify the dismissal by proving the misconduct when the servant questions the legality of the dismissal, say, by an action for wages for periods subsequent to the dismissal. The protections afforded to the servant by the statute are thus:
(1) an insistence on the employer holding an enquiry into the misconduct ; and
(2) having satisfactory evidence recorded at that enquiry held in his presence before he can be dismissed from service for misconduct.
It would, therefore, appear as if the enquiry of the sort set out in the statute is as essential a prerequisite to a valid order of dismissal, as the presence of misconduct which is required by the common law as well, on the part of the employee.
Learned counsel then contends that Article 311 of the Constitution is a safeguard for a Government employee. Proviso (a) to Article 311(2) of the Constitution will come into play only when the conviction on a criminal charge is on the ground of conduct in the course of employment or connected with employment. According to the learned Counsel, a conduct which is not in the course of employment will not become a misconduct and no disciplinary action can be taken against the employee for that conduct. Learned Counsel refers to the decision of the Supreme Court in Tata Oil Mills Co. Ltd. v. The Workmen : (1964)IILLJ113SC wherein Gajendragadkar C.J., speaking for the Court, has said :
The said standing order provides that without prejudice to the general meaning of the term ' misconduct', it shall be deemed to mean and include, inter alia, drunkenness, fighting, riotous or disorderly or indecent behaviour within or without the factory. It is common ground that the alleged assault took place outside the factory, and, in fact, at a considerable distance from it.... It would, we think, be unreasonable to include within Standing Order 22(viii) any riotous behaviour without factory which was the result of purely private and individual dispute and in course of which tempers of both the contestants became hot. In order that Standing Order 22(viii) may be attracted, the appellant should be able to show that the disorderly or riotous behaviour had some rational connection with the employment of the assailant and the victim.
7. Learned Counsel then refers to the decision of the Assam and Nagaland High Court in Kakajan Tea Estate v. The Presiding Officer, Labour Court, Assam A.I.R. 1967 A. & N. 68, wherein it was held that a quarrel between the workmen outside the working hours and away from the workspot is only a private matter and will not be misconduct within the provisions of the Standing Orders of the Establishment. In the above case, the charge against the workman was that he beat his step-daughter in castisement. The incident took place in the house of the workman where he was living with his step-daughter. Learned Counsel then contends that the action can be sustained only if disciplinary action can be taken for the conduct which had led to his conviction on a criminal charge. This can be only if such conduct constitutes a misconduct according to the relevant service rules. The stand taken by the learned Counsel is that the conduct of the petitioner which led to his conviction is not a misconduct as per the service rules and hence even if the petitioner was convicted on a criminal charge that cannot be a reason for invoking the powers under Rule 19' of the Rules and removing him from service. Reference is made to the Full Bench decision of Punjab and Haryana High Court in Om Prakash v. The Director, Postal Service (Post & Telegraphs Deptt.) Punjab Circle. Ambala A.I.R. 1973 P. & H. 1. In the above case in para 18A of the judgment, R.S. Narula, J., has held :
As already stated there is no provision in the relevant rules providing for anybody being dismissed or removed from service in view of or on account of conviction on a criminal charge. Disciplinary action can he taken for the conduct which had led to conviction or a criminal charge if such conduct constitutes misconduct according to the relevant service rules. An apt illustration was given in this connection by my learned brother Tuli. J., during the hearing of this petition.. It was pointed out that if a Government servant assault's his neighbour and is convicted for the same, it may not be possible to take any departmental action against him (unless the competent authority holds that the conduct of the delinquent official was unbecoming a Government servant). but if the official was convicted for assaulting his immediate officer in his office, he would be liable to be dealt with departmentally. This illustration shows that the rule-making authorities have justifiably not provided for disciplinary action being taken in every case of conviction, and have left the matter to be decided by the competent authority in relation to the original conduct and not the conviction.
In the above case it was further held that:
(xii) an order of dismissal or removal or for compulsory retirement can be passed under Rule 19(i) (without conforming to the procedure prescribed in Rules 14 to 18) not on the basis of the conviction, but only if the competent authority finds that the relevant misconduct of the concerned Government servant renders his further retention in public service undesirable; and
(xiii) an order imposing a punishment on a Government servant simply because of his conviction on a criminal charge without reference to the conduct which led to the conviction cannot be sustained.
Relying on the above decision the learned Counsel contends that Rule 19(1) of the Rules can be resorted to only when the conviction is for a misconduct. Moreover, there is no finding in Ext. P1 that the conviction of the petitioner is for doing some act which is a misconduct. It is also pointed out that neither the offence committed by the petitioner was one involving moral turpitude nor it la one which will be a misconduct under the conduct rules. Learned Counsel also refers to the decision of the Supreme Court in Sirsi Municipality v. C.K.T. Tellis : (1973)ILLJ226SC , and contends that if the dismissal or removal from service of a public servant is in violation of the statutory provisions the Court has the power to declare the order of removal or dismissal from service a nullity. In the above case, Ray, J., (as he then was) speaking for the Court, has said :
In the case of a servant of the State or of local authorities or statutory bodies, Courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation of the provisions of the statutes. Apart from the intervention of statute there would not be a declaration of nullify in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies.
The Courts keep the State and the public authorities within the limits of their statutory powers. Where a State or a public authority dismisses an employee in violation of the mandatory procedural requirements or on grounds which are not sanctioned or supported by statute Courts may exercise jurisdiction to declare the act of dismissal to be a nullity. Such implication of public employment is thus distinguished from private employment in pure cases of master and servant.
Learned counsel points out that protection under Article 311(2) of the Constitution is that a Government servant cannot be dismissed or removed or reduced in rank except after a proper enquiry. The procedure laid down in Rules 14 to 18 of the Rules also insists that only after a proper enquiry in which the Government servant is afforded a reasonable opportunity of being heard, penalties of dismissal, removal from service and reduction in rank can be imposed. Proviso (a) to Article 311(2) is an exception. Similarly. Rule 19 also prescribes a special procedure. But for Rule 19 of the Rules to apply, the conduct, which has led to the conviction of the Government servant on a criminal charge must be a conduct which is a misconduct as per the service rules. The conduct which led to the petitioner's conviction cannot be a misconduct and hence the 1st respondent has no jurisdiction to pass Ext. P1 order.
8. The learned Central Government Pleader contends that under Rule 19(1) of the Rules no show cause notice is necessary. It is also pointed out that the petitioner was not, exonerated of the charges by Ext. P2 judgment in the appeal he filed against his conviction. It is clear from Ext. P1 that the disciplinary authority has adverted to the conduct of the petitioner which led to his conviction, and hence Ext. P1 order of removal can very well be sustained under Rule 19(1) of the Rules. The learned Central Government Pleader refers to the decision of Durgadas Basu. J. of the Calcutta High Court in Sunil Kumar v. State [1970-I L.L.J. 588], and contends that the exemption contained in proviso (a) to Article 311(2) of the Constitution is for the benefit of the administration and it is conducive to public interest. But what is seen from para 2(a) of the above judgment is that the question that came up for consideration in that case was only whether a conviction on a criminal charge in proviso (a) to Article 311(2) of the Constitution includes a conviction on a statutory offence. If this be so, the above decision cannot, in any way further the case of the department. The learned Central Government Pleader then referred to the decision of this Court in Mohammed Abdul Khader v. State of Kerala in O.P. No. 358 of 1973 and the judgment in Writ Appeal No. 115 of 1973. The above writ appeal was against the dismissal of O.P. No. 358 of 1973 in limine. The writ appeal also met with the same fate. May be because the above two decisions were rendered in dismissing the original petition and the writ appeal therefrom in limine that no discussion of the points raised is seen in those judgments. What is seen from the cause title is that the petitioner and the appellant in the writ appeal was the teacher of an L. P. School. As it is not even clear from the judgments that the question raised in this original petition was even considered there, I am not in a position to place any reliance on the above decisions referred to by the learned Central Government Pleader. The learned Central Government Pleader also contends that the decision in Om Prakash v. The Director, Postal Services (Post and Telegraphs Deptt.) Punjab Circle. Ambala, , really supports the case of the department and refers to para 18 of the decision.
9. Learned Counsel for the petitioner replying the arguments of the learned Central Government Pleader points out that it is the ratio decidendi of a decision which binds as a precedent. The ratio of the case must mean a decision on issue which is a live issue between the parties and the law should result from being applied to live issues raised between actual parties and argued on both sides. In support of his contention the learned Counsel refers to the decision of the Bombay High Court in Yesh Bai v. Ganpat : AIR1975Bom20 . The learned Counsel further contends that the question involved in this case is whether Rule 19(i) of the Rules can be invoked in every case where an employee is convicted by a Court. What has been held in Om Prakash v. The Director, Postal Services (Postal and Telegraphs Deptt) Punjab Circle, Ambala , is that unless and until the conduct of the Government servant which led to his conviction on a criminal charge is a misconduct as per the conduct; rules, Rule 19(i) of the Rules cannot be invoked. The learned Counsel concludes by saving that the facts of that case are on all fours with the facts of this case.
10. There seems to be considerable force in the contentions of the learned Counsel for the petitioner. Rule 19 of the Rules is as follows :
19. Special procedure in certain cases.-Notwithstanding anything contained in rules 14 to rule 18 :
(i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules, or
(iii) where the President is satisfied that in the interest, of the security of the State, it is not expedient 10, hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:
Provided that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.
Article 311(2) of the Constitution enshrines a valuable right, to a Government servant. Rules 14 to 18 of the Rules which lay clown the procedure for imposing penalties upon a Government servant are there because of the protection contained in Article 311(2) of the Constitution. Proviso (a) to Article 311(2) of the Constitution and the special procedure prescribed in Rule 19 of the Rules are really exceptions. Rule 19(i) can be invoked only in cases where if, is strictly applicable. A conduct not in the course of employment cannot be a misconduct. Similarly, a conduct which is rot a misconduct as per the conduct rules also cannot be the subject matter of disciplinary action against a Government servant. In that case, the conviction on a criminal charge for a conduct which is not a misconduct as per the conduct rules cannot be a reason for taking action against a Government servant under Rule 19(i) of the Rules. A domestic quarrel which has nothing to do with the employment of the Government servant cannot be a misconduct. Moreover, if the same occurs at a place far away from the place of employment, that cannot in any way be made the subject-matter of a disciplinary action against the Government servant. In this case, a scuffle between the petitioner-Government servant and his step-brother at the place where they live resulted in the criminal charge and the conviction thereon. If the conduct of the petitioner cannot be the subject-matter for taking disciplinary action against him under Rules 14 to 18 of the Rules, the mere fact that he was convicted on a criminal charge on the ground of that conduct cannot be a reason for invoking Rule 19(i) of the Rules. Hence Ext. P1 order of the 1st respondent removing the petitioner from service is without jurisdiction. I quash Ext. P1. If Ext. P1 is an order without jurisdiction the fact that the petitioner did not; file an appeal from it in time is immaterial. An order without jurisdiction is an order ab initio void and hence it is not necessary that the petitioner should appeal against that order. I, therefore quash Ext. P4 order also. The petitioner is entitled to continue in service without any interruption. The petitioner is to get all benefits of service including payment of arrears of salary from 1-5-1971 onwards.
11. The original petition is allowed. There will be no order as to costs.