Full Judgment Text
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PETITIONER:
RASIKLAL VAGHAJIBHAI PATEL
Vs.
RESPONDENT:
AHMEDABAD MUNICIPAL CORPORATION AND ANOTHER
DATE OF JUDGMENT14/01/1985
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
MISRA RANGNATH
CITATION:
1985 AIR 504 1985 SCR (2) 556
1985 SCC (2) 35 1985 SCALE (1)101
ACT:
Labour Law-Misconduct-Whether suppression of
material fact regarding prior dismissal the time of
obtaining fresh employment Constitutes "misconduct "-
Whether Standing Orders or Service Regulation, should
enumerate an act or omission as "misconduct" -Effect of
non-prescribing the acts of "misconduct" in the
Standing Order/Service Regulations.
HEADNOTE:
The petitioner applied for the post of Head Clerk
with Ahmedabad Municipal Corporation in a prescribed form
which contained a column requiring the applicant to state
whether he had been removed from service and, if so,
reasons for such removal. The petitioner, who had earlier
been removed from service of the Sales Tax Department on
the ground of proved misconduct, 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. The Labour Court
rejected his petition against removal from service on the
ground that the misconduct alleged against him is proved.
Thereupon, he filed a writ petition in the High Court.
The High Court while dismissing his petition held that
even if 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.
Dismissing the petition by the petitioner,
^
HELD: (1) It is a well-settled canon of penal
jurisprudence that removal or dismissal from service on
account of the misconduct constitutes penalty in law and
therefore the workman sought to be charged for misconduct
must have adequate advance notice of what action or what
conduct would constitute misconduct. Therefore, 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. But, if after undergoing
the elaborate exercise of enumerating misconduct, it is
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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. Therefore, it cannot be left
to the vagaries of management to say ex post facto
557
that some acts of omission or commission nowhere found
to be enumerated in A 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.
[559C-E; B-C; 561C and D]
Glaxo Laboratories v. The Presiding Officer Labour
Court Meerut & Ors. [1984] 1 SCR 230 followed.
Salem Erode Electricity Distribution Co. Ltd v.
Salem Erode Electricity Distribution Co. Ltd. Employees
Union [1966] 2 SCR 498, Western India Match Company Lid.
v. Workman [1974] SCR 434, Workmen of Lakheri Cement Works
Ltd. v. Associated Cement Companies Ltd. 1970 20. Indian
Factories & Labour Reports 243 & Rohtak Hissar District
Electricity Supply Co. Ltd. v. State of Utter Pradesh &
Ors. [1966] 2 SCR 863 referred to.
(2) 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. [561E]
(3) In the instant case, the 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 must accordingly
fail. The High Court was right in holding that the
suppresio veri and suggestion falsi would constitute
misconduct. But, the finding of the High Court that even if
the misconduct 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 is
not the correct view of law and it has to be rejected.
[557H; 561H; 562 A, B]
JUDGMENT:
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
558
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
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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.
559
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 well-
settled 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
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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.
560
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
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this law over a long period has belief their faith."
Lastly we may refer to Workmen of Lakheri Cement
Works
(1) [1966] 2 S.C.R. 498.
(2) [1974] 1 S.C.R. 434.
561
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.
(2) [1966] 2 S.C.R. 863.
562
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.
563