Revisional Power cannot be exercised to curtail the Rights of the Employer

Harshit Sharma | Amity Law School, Madhya Pradesh | 4th January 2020

New India Assurance Co. Ltd. V/s. Krishna Kumar Pandey Criminal Appeal No. 1852/2019

FACTS OF THE CASE

1. The present appeal was filed while challenging the impugned order dated 03.02.2014 in the Miscellaneous Application filed in the Criminal Case No. 8951/2012 wherein the High Court clarified that the order of conviction against the present respondent u/s. 498A IPC shall not affect his service in the appellant- company. 
2. Upon being informed of the order dated 23.11.2012 of the High Court, the appellant company moved an application in Miscellaneous Criminal Case No. 2417 of 2013 under Section 482 of the Code of Criminal Procedure, 1973 for recalling the Order dated 23.11.2012. 
3. This application was moved on the basis that the right of the employer to take note of any misconduct on the part of the employee, which led to his conviction by criminal court, cannot be taken away in a collateral proceeding behind the back of the employer. 
4. But the High Court dismissed the miscellaneous application by Order dated 3.02.2014 on the short ground that a review of the order passed by a coordinate Bench was not permissible and that the appellant will be at liberty to file appropriate proceedings.
5. Thus, the present appeal was preferred. 

ISSUES RAISED

1. Whether in a revision under Section 397 of the Code of Criminal Procedure, arising out of conviction, the High Court could have, even while affirming the conviction, taken away the right of the employer to exercise disciplinary control over an employee, on the basis of the conviction by the criminal court? 
2. What is the scope of inherent power conferred upon High Court u/s. 482 CrPC and whether it is barred by the specific provisions of Section-362 of CrPC? 

RULING OF THE COURT/ THE COURT HELD THAT

The Hon’ble Supreme Court of India allowed the appeal and set-aside the order clarifying that conviction won’t affect the service of the respondent, while affirming and opining the following observations: The bench addressed the contention based on the embargo spelt out in Section 362 of the Code, that, there was no power for the High Court to alter or review the judgment rendered earlier in the revision led by him, except for the correction of a clerical or arithmetical error. In the light of the case of State of Punjab v.  Davinder Pal Singh Bhullar.

“The first is that Section 362 of the Code is expressly subjected to “what is otherwise provided by the Code or by any other law for the time being in force.” Though this Court pointed out in Davinder Pal Singh (supra) that the exceptions carved out in Section 362 of the Code would apply only to those provisions where the Court has been expressly authorized either by the Code or by any other law but not to the inherent power of the Court, this Court nevertheless held that the inherent power of the Court under Section 482 Cr.P.C is saved, where an order has been passed by the criminal Court, which is required to be set aside to secure the ends of justice, or where the proceeding amounts to abuse of the process of Court. “

“The case on hand is one where the respondent secured an order from the High Court, behind the back of his employer that his conviction will not have an impact upon the service career of the respondent. The High Court did not have the power to pass such an order. If at all, the High Court could have invoked, after convicting the respondent, the provisions of the Probation of Offenders Act, 1958, so that the respondent could take shelter, if eligible, under Section 12 of the said Act but cannot take umbrage under Section 362 of Cr.P.C. The second reason is that the respondent himself was a beneficiary of what he is now accusing the appellant of. It is nothing but a case of pot calling the kettle black. “

“Obviously the power conferred by Sections 397 and 401 are actually powers of superintendence/supervision over inferior Courts. The power cannot be converted into the power of superintendence over the employer of the person accused. None of the provisions of Sections 397 to 401 confer any power upon the High Court to declare that there shall be no civil consequences, resulting from the conviction. Therefore, what the High Court did by its Order dated 23.11.2012, holding that the conviction shall not affect the service career of the respondent adversely, was completely outside the purview of its revisional jurisdiction and cannot be sustained.”