CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 5523 of 1984.
From the Judgment and Order dated 28th November, 1983 of the High Court of Gujarat in Special Civil Application No. 4649 OF 1981.
Vimal Dave for the Petitioner.
The Judgment of the Court was delivered by
DESAI, J. Petitioner is shown to be guilty of suppression of a material fact which would weigh with any employer in giving him employment and therefore, the case of the petitioner does not merit consideration under Art. 136 of the Constitution and his petition for special leave to appeal against the decision of a Division Bench Of the Gujarat High Court in Special Application No 4649 of 1981 dated November 28,1983 must accordingly fail but this short epistle became a compelling necessity in view of the statement of law appearing in the judgment of the High Court which if permitted to go uncorrected, some innocent person may suffer in future. That is the only justification for this short order.
The petitioner on his application was recruited in the Sales Tax Department on September 30, 1950 and at the relevant time he was working as Sales Tax Inspector. By an order dated January, 31 1964 of the Commissioner of Sales Tax, Gujarat State, the petitioner who was at the relevant time working as Sales Tax Inspector was charged with misconduct of gross negligence and acted with gross impropriety in demanding illegal gratification, and as these charges were held proved, the Commissioner of Sales Tax imposed a penalty of removal from service. This is not in dispute and therefore it can be safely stated that the petitioner was removed from the service of the Sales Tax Department on account of the proved misconduct.
After being removed from the Sales Tax Department, the petitioner joined service in Bhakta Vallabh Dhola College, Ahmedabad (’college’ for short) on May 15, 1964. While continuing his service with the college, the petitioner applied on January 13, 1968 for the post of Head-Clerk with Ahmedabad Municipal Corporation. The application had to be made in the prescribed form, Column No. 14 of which required the applicant to state whether the applicant had been removed from service and if so, reasons for removal and if the applicant had voluntarily left previous service, reasons for leaving the service should be stated. While answering this column, the petitioner stated that he had served in the Sales Tax Department from September 30, 1950 to January 31,1964 and that he has resigned from service due to transfer. It thus appeared that the petitioner was guilty of suppressio veri and suggestio false inasmuch as he suppressed the material fact that he was removed from service on the ground of proved misconduct and that he made a false suggestion that he had voluntarily left service because of transfer. Ultimately when these facts came to light, he was charge-sheeted and removed from service. A petition to the Labour Court was rejected on the ground that the misconduct alleged against the petitioner is proved. His writ petition to the High Court proved unsuccessful. Hence he filed this petition for special leave.
The High Court while dismissing the petition held that even if A the allegation of misconduct does not constitute misconduct amongst those enumerated in the relevant service regulations yet the employer can attribute what would otherwise per se be a misconduct though not enumerated and punish him for the same. This proposition appears to us to be startling because even though either under the Certified Standing Orders or service regulations, it is necessary for the employer to prescribe what would be the misconduct so that the workman/employee knows the pitfall he should guard against. If after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any conduct as misconduct, the workman will be on tenterhooks and he will be punished by ex post facto determination by the employer. It is a wellsettled canon of penal jurisprudence-removal or dismissal from service on account of the misconduct constitutes penalty in law-that the workmen sought to be charged for misconduct must have adequate advance notice of what section or what conduct would constitute misconduct. The legal proposition as stated by the High Court would have necessitated in depth examination, but for a recent decision of this Court in Glaxo Laboratories v. The Presiding Officer, Labour Court Meerut & Ors.(1) in which this Court specifically repelled an identical contention advanced by Mr. Shanti Bhushan, learned counsel who appeared for the employer in that case observing as under:
"Relying on these observations, Mr. Shanti
Bhushan urged that this Court has in terms held that
there can be some other misconduct not enumerated in
the standing order and for which the employer may
take appropriate action. This observation cannot be
viewed divorced from the facts of the case. What
started in the face of the court in that case was
that the employer had raised a technical objection
ignoring the past history of litigation between the
parties that application under Sec. 33A was not
maintain able. It is in this context that this Court
observed that the previous action might have been the
outcome of some misconduct not enumerated in the
standing order. But the extracted observation cannot
be elevated to a proposition of law that some
misconduct neither defined nor enumerated and which may
be believed by the employer to be misconduct ex post
facto would expose the workman to a (1) [1984]1 S.C.R. 230.
penalty. The law will have to move two centuries back
ward to accept such a construction. But it is not
necessary to go so far because in Salem Erode
Electricity Distribution Co. Ltd. v. Salem Erode
Electricity Distribution Co. Ltd. Employees Union,(1)
this Court in terms held that the object underlying
the Act was to introduce uniformity of terms and
conditions of employment in respect of workmen
belonging to the same category and discharging the
same or similar work under an industrial establishment,
and that these terms and conditions of industrial
employment should be well-established and should be
known to employees before they accept the employment.
If such is the object, no vague undefined notion
about any act, may be innocuous, which from the
employer’s point of view may be misconduct but not
provided for in the standing order for which a
penalty can be imposed, cannot be incorporated in
the standing orders. From certainty of conditions of
employment, we would have to return to the days of
hire and fire which reverse movement is hardly
justified. In this connection. we may also refer to
Western India Match Company Ltd v.Workmen(2) in which
this Court held that any condition of service if
inconsistent with certified standing orders, the same
could not prevail and the certified standing orders
would have precedence over all such agreements. There
is really one interesting observation in this which
deserves noticing Says the Court:
"In the sunny days of the market economy
theory people sincerely believed that the economy law
of demand and supply in the labour market would
settle a mutually beneficial bargain between the
employer and the workman Such a bargain, they took it
for granted, would secure fair terms and conditions of
employment to the workman. This law they venerated as
natural law. They had an abiding faith in the verity
of this law. But the experience of the working of
this law over a long period has belief their faith."
Lastly we may refer to Workmen of Lakheri Cement Works
Ltd. Associated Cement Companies Ltd(1) This Court
repelled the contention that the Act must prescribe the
minimum which has to be prescribed in an industrial
establishment, but it does not exclude the extension
other wise. Relying upon the earlier decision of this
Court in Rohtak Hissar District Electricity Supply Co.
Ltd. v. State of Uttar Pradesh & Ors(2) the Court held
that everything which is required to be prescribed with
precision and no argument can be entertained that
something not prescribed can yet be taken into account
as varying what is prescribed. In short it cannot be
left to the vagaries of management to say ex post facto
that some acts of omission or commission nowhere found
to be enumerated in the relevant standing order is
none-the-less a misconduct not strictly falling within
the enumerated misconduct in the relevant standing
order but yet a misconduct for the purpose of imposing
a penalty. Accordingly, the contention of Mr. Shanti
Bhusan that some other act of misconduct which would
per se be an act of misconduct though not enumerated in
S.O. 22 can be punished under S.O. 23 must be rejected.
It is thus well-settled that unless either in the Certified Standing Order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and punish the workman even though the alleged misconduct would not be comprehended in any of the enumerated misconduct.
The High Court fell into error when is observed that:
"The conduct of the petitioner in suppressing the
material facts and misrepresenting his past on the
material aspect cannot be said to be a good conduct. On
the contrary it is unbecoming of him that he should
have deliberately suppressed the material fact and
tried to obtain employment by deceiving the Municipal
Corporation. It is clearly a misconduct " After thus holding that the suppressio very and suggestio false would constitute misconduct, the High Court held even if it
(1) [1970] 20 Indian Factories & Labour Reports, 243. does not fall in any of the enumerated misconducts, yet for the purpose of service regulation, it would none-the-less be a misconduct punishable as such. We are unable to accept this view of law and it has to be rejected.
Having clearly restated the legal position, we reject this special leave petition. M.L.A. Appeal dismissed.