Decided on November 07,1990

Jamil Ahmed Qureshi Appellant
Municipal Council Katangi Respondents

Cited Judgements :-



- (1.)Heard counsel for considerable time and also perused the three judgments cited before us by the learned counsel for the appellant in support of his submissions, namely, L. W. Middleton v. Harry Playfair District council, Amraoti v. Vlthal Vmayalc Bapat and Lal Andhiraj v. State of M. P. for the proposition that once a master has condoned any misconduct on the part of his servant which would have otherwise justified dismissal or imposition of a fine, he cannot after such condonation go back upon his election to condone and claim a right to dismiss the servant or impose a fine or any other punishment in respect of the offence which has been condoned. Admittedly, in the present case the appellant has been convicted for an offence under S. 377 Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of 1 1/2 years and this was before he joined the service on 24/02/1967. According to the learned counsel though his conviction has been brought to the notice of his employer even on 15/09/1971, and subsequently by the report of a police officer on 1/04/1974, no action was taken but hewas dismissed from service on receipt of a further complaint on 2/03/1982, and, therefore, it must be construed that the employer elected to continue the appellant in service by waiving or condoning the appellant's misconduct and hence he cannot go back upon his election and claim a right to dismiss him in respect of the offence condoned.
(2.)First, this contention has not been agitated before the High court. Secondly, even holding that there is no legal bar for urging this contention before us, we are not able to accede with the submission That the employer had either waived or condoned the misconduct of the appellant. Thirdly, the magnitude of the crime involving the. moral turpitude of a very low order, as pointed out by the High court, does not warrant any interference with the impugned judgment. The decisions cited by the learned counsel cannot be availed of by the appellants since the facts in all those cases are quite distinguishable.
(3.)The facts in L. W. Middleton case disclose that the respondent, Playfair who was appointed as the Manager of the Sonapur Tea Estate in Kamrup of which the appellant (defendant in the suit) was the proprietor filed a suit for recovery of arrears of salary and commission and for damages for breach of contract, the terms of which were embodied in a document dated 11/07/1918. It seems that on October 12, 1919, a notice was sent by Middleton to Playfair staling "i send you this notice to terminate our agreement in six months from today". On 1/09/1920, Playfair instituted the suit. It was pleaded in a suit that if a master on discovering his servant guilty of misconduct which would justily 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. Having regard to those facts and circumstances of the case, it was held that the master cannot at any subsequent time dismiss the servant on discovering that his servant has been guilty of misconduct, yet elects him to continue in his service.

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