Full Judgment Text
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PETITIONER:
GLAXO LABORATORIES
Vs.
RESPONDENT:
THE PRESIDING OFFICER, LABOUR COURT MEERUT & ORS.
DATE OF JUDGMENT06/10/1983
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
VARADARAJAN, A. (J)
CITATION:
1984 AIR 505 1984 SCR (1) 230
1984 SCC (1) 1 1983 SCALE (2)831
CITATOR INFO :
R 1984 SC1064 (11)
E 1984 SC1164 (10)
R 1984 SC1361 (22)
RF 1985 SC 504 (4)
ACT:
Industrial Employment (Standing Orders) Act, 1946-
Construction of Standing Orders-Standing orders providing
for imposition of penalty on proof of ‘misconduct’ should be
construed strictly like penal statutes.
HEADNOTE:
The appellant-company chargesheeted the second
respondent and some of his striking co-workmen for violation
of cls. 10,16 and 30 of Standing Order 22 on the allegation
that they had boarded a bus carrying ‘loyal workmen’ and
manhandled them at different places during the journey.
Clause 10 of S.O. 22 provided that "drunkenness, fighting,
indecent or disorderly behaviour use of abusive language,
wrongfully interfering with the work of other employees or
conduct likely to cause a breach of the peace or conduct
endangering the life or safety of any other person, assault
or threat of assault, any act subversive of discipline and
efficiency and any act involving moral turpitude, committed
within the premises of the establishment, or in the vicinity
thereof" would be treated as misconduct. Standing order 23
prescribed punishment for misconduct. The second respondent
approached the Labour Court under s.11-C of the U. P.
Industrial Disputes Act, 1947 for a correct interpretation
of the Standing Order. The Labour Court held that the acts
of misconduct were not covered by the provisions of the
Standing Order as they were alleged to have been committed
outside the premises of the establishment and not in its
vicinity. The High Court upheld the construction put by the
Labour Court and dismissed the writ petition filed by the
appellant.
Counsel for appellant contended that if the motivation
for committing an act of misconduct any-where is to have an
adverse effect on the peaceful working of the establishment,
then, irrespective of the fact where the misconduct is
committed, it should be deemed to have been committed within
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the premises of the establishment or in its vicinity; and,
further, that since the expression ‘misconduct’ under S.O.23
is not qualified as the one set out in S.O.22, any other act
of omission or commission which would per se be misconduct
would be punishable under S.O. 23 irrespective of the fact
whether it finds its enumeration is S.O. 22 or not.
231
Dismissing the appeal,
HELD : The Industrial Employment (Standing Orders) Act,
1946 confers the power to prescribe conditions of service of
workmen on the employer to enable him to peacefully carry on
his industrial activity and he has jurisdiction to regulate
the behaviour of workmen within the premises of his
establishment or in its vicinity. This being the larger
objective behind issue of certified Standing Orders, the
only construction one can put on cl.10 is that the various
acts of misconduct set out therein would be misconduct for
the purpose of S.O.22 and punishable under S.O.23, if
committed within the premises of the establishment or in the
vicinity thereof. What constitutes establishment or its
vicinity would depend upon the facts and circumstances of
each case. [240 D-E; H; 241 A-B]
(b) Standing Order 22 is a penal statute in the sense
that it provides for imposition of penalty on proof of
misconduct. For a penalty to be imposed it must be quite
clear that the case falls within both the letter and the
spirit of the statute. It is a general rule that penal
enactments are to be construed strictly and not extended
beyond their clear meaning. If the expression ‘committed
within the premises of the establishment or in the vicinity
thereof’ contained in cl. 10 is given a wide construction so
as to make the clause itself meaningless and redundant, the
penal statute would become so vague and would be far beyond
the requirement of the situation as to make it a weapon of
torture. If misconduct, committed anywhere, irrespective of
the time-place content where and when it is committed, is to
be comprehended in cl.10 merely because it has some remote
impact on the peaceful atmosphere in the establishment,
there would be no justification for using the words
‘committed within the premises of the establishment or in
the vicinity thereof’ in cl.10. These are words of
limitation and they must cut down the operation of the
clause. Clauses 16 and 30 of S.O.22 form an integral part of
a Code and the setting and purpose underlying these two
clauses must receive the same construction which cl.10
received. [242 F-H; 243 A-C]
Halsbury’s Laws of England, 4th Ed., Vol. 44, paras
909, 910 at p. 560; referred to :
Mulchandani Electrical and Radio Industries Ltd. v.
Workmen A. I. R. 1975 SC 2125; Central India Coalfields v.
Ram Bilas Shobnath, A. I. R. 1961 S. C. 1189; Lalla Ram v.
Management of D. C. M. Chemical Works, [1978] 3 S. C. R. 82;
British India Corporation v. Bhakshi Sher Singh & Ors.
[1962-63] 23 Indian Factories Journal, 484; explained and
distinguished.
Bharat Iron Works v. Bhagubhai Patel, [1976] 2 S. C. R.
280; Saurashtra Salt Manufacturing Co. v. Bai Valu Raja &
Ors, A.I. R. 1958 S. C. 881 and General Manager, B. E. S. T.
Undertaking v. Mrs. Agnes, [1964] 3 S. C. R. 930; not
relevant.
(c) The Industrial Employment (Standing Orders) Act,
1946 was enacted, as its long title shows, to require
employers in industrial establishments to define with
sufficient precision the conditions of employment under them
and
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232
to make the said conditions known to workmen employed by
them. Since the scheme of the Act shows that certified
Standing Orders have more or less a statutory flavour,
ordinary cannons of construction of statutes have to be
applied for their interpretation. The purpose of
interpretation is to give effect to the intention underlying
the statute and therefore unless the grammatical
construction leads to an absurdity, it is safe to give words
their natural meaning because the framer is presumed to use
the language which conveys the intention. However, if two
constructions are possible, the construction which advances
the intention of the legislation namely, to afford
protection to the unequal partner in the industry, and
remedies the mischief to thwart which it is enacted, should
be accepted. [239 C; 238 F-H]
(d) Even where the Standing Order is couched in a
language which seeks to extend its operation beyond the
establishment, it would none-the-less be necessary to
establish causal connection between the misconduct and the
employment. The causal connection, in order to provide
linkage between the alleged act of misconduct and
employment, must be real and substantial, immediate and
proximate and not remote or tenuous.
Tata Oil Mills v. Workmen, [1964] 7 S. C. R. 555;
explained and distinguished.
(e) Under the Act, the employer is under an obligation
to specify with precision those acts of omission and
commission which would constitute misconduct. Penalty is
imposed for misconduct. The workmen must know in advance
which act or omission would constitute misconduct so as to
be visited with penalty. Upon a harmonious construction, the
expression ‘misconduct’ in S.O.23 must refer to those acts
of omission and commission which constitute misconduct as
enumerated in S.O.22 and none else. It is therefore
difficult to entertain the submission that some other act or
omission which may be misconduct though not provided for in
the Standing Order would be punishable under S.O.23. [247 D-
F]
Salem Erode Electricity Distribution Co. v. Salem Erode
Electricity Distribution Employees Union, [1966] 2 S.C.R.
498; Western India Match Co. v. Workmen, [1974] 1 S.C.R.
434; Lakheri Cement Works v. Associated Cement Companies,
[1970] 20 Indian Factories and Labour Reports 243; referred
to.
Mahendra Singh Dhantwal v. Hindustan Motors, [1976]
Supp. S.C.R, 635; explained and distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2911 of
1981.
Appeal by special leave from the Judgment and Order
dated the 7th May, 1981 of the Allahabad High Court in
Civil. Misc. Writ Petition No. 5437 of 1979.
233
Shanti Bhushan, SS Shroff, S.A. Shroff, VV Joshi and
P.S. Shroff for the Appellant.
M.K. Ramamurthi, and J. Ramamurthi for the Respondent.
The Judgment of the Court was delivered by
DESAI, J. Appellant, a multinational company, has set
up a factory at Aligarh in the State of Uttar Pradesh in the
year 1958. Appellant had declared a lockout with effect from
12 noon on May 6, 1977. It was notified that as negotiations
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for settlement of pending disputes between the appellant and
the workmen employed by it were afoot, the lockout was to be
lifted and was actually lifted from 8.00 a.m. on May 13,
1977. It is alleged that on the very day during the second
shift, some of the workmen again resorted to an illegal
strike, gathered together near the gate of the factory and
intimidated and obstructed other workmen desiring to report
for duty. Appellant approached the Civil Court and obtained
an ex-parte injunction restraining the workmen from
indulging into unfair and illegal activities. On May 27,
1977 around 5.35 p.m., some of the workmen who had not
joined the strike and who have been referred to in the
discussion as ‘loyal workmen’ boarded bus No. UPB-6209
chartered by the appellant company exclusively for the use
of the ‘loyal workmen’ commuting between the city and the
factory. It is alleged that some of the striking workmen
including the second respondent boarded the bus and during
the journey in the bus at different places manhandled the
‘loyal workmen’. According to the appellant company, this
action of the second respondent and his striking colleagues
9 in number whose names have been set out in the chargesheet
constitutes misconduct specified in clauses 10, 16 and 30 of
Standing Order 22 applicable to the workmen employed by the
appellant company. Accordingly, a charge-sheet dated June,
6, 1977 was served upon the second respondent who in turn
approached the Labour Court under sec. 11-C of the U.P.
Industrial Disputes Act, 1947 inviting the Labour Court to
hold that on a correct interpretation of the relevant
standing order, the alleged acts of misconduct would not be
covered by clauses 10, 16 and 30 of S.O. 22.
The Labour Court framed as many as 8 issues out of
which Issue Nos. 4, 5 and 8 engaged the attention of the
High Court held that the construction put by the Labour
Court on the relevant clauses of the standing order is a
reasonable one and accordingly dismissed the writ petition.
Hence this appeal by special leave.
234
At the outset, it is necessary to administer a caution
that in this appeal the only question that falls for
consideration is: whether the misconduct as alleged in the
chargesheet drawn-up against the second respondent and
others, taking them for the present purpose to be true would
squarely fall within clauses 10, 16 and 30 of S.O. 22. This
caution has become necessary as upon a reading of the
decision of the Labour Court and the judgment of the High
Court, an impression was formed that the controversy was
sought to be expanded far beyond its legitimate sphere by
advancing hypothetical illustrations and then inviting the
Labour Court and High Court and then this Court to consider
whether the construction put on the various clauses of
standing order 22 by the Labour Court and the High Court is
reasonable or is self-defeating. It is not necessary at all
to examine the ambit and the scope of clauses 10, 16 and 30
of S.O. 22 with reference to hypothetical cases but a
limited question which this Court is called upon to examine
is whether the charges imputing misconduct as framed by the
appellant company would be covered by clauses 10, 16 and 30
of S.O. 22 ? While parties. They read as under :
"4. Can the opposite party take disciplinary action
against the applicant for acts of misconduct, said
to have been committed at the places, referred to
in the chargesheet issued to him ?
5. Whether the Point, where the bus in question is
said to have started is part of the premises of
the opposite party or is situated in the vicinity
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of the aforesaid premises ?
6. Is the place, where the bus is said to have
started, situated on the public road ?"
All these three issues were considered together by the
Labour Court. The Labour Court held that upon a true
construction of clauses 10, 16 and 30 of S.O. 22, the
appellant company is not entitled to charge-sheet the second
respondent and his co-workers for alleged acts of misconduct
said to have been committed by them outside the premises of
the establishment and not in the vicinity thereof. It
further held that it was open to the appellant company to
held an enquiry into the alleged act of misconduct of the
second respondent and his co-workers in respect of charges 2
(a) and 2 (b) of the charge-sheet drawn-up by the appellant.
There are other
235
finding of the Labour Court with which we are not concerned
in this appeal.
The appellant moved the Allahabad High Court under
Arts. 226 and 227 of the Constitution in Civil Misc. Writ
Petition No. 5437 of 1979. A Division Bench of the
ascertaining whether the construction put on these three
clauses both by the Labour Court and the High Court is fair,
reasonable and serves the purpose for which these clauses
were framed, none the less we would strictly confine
ourselves to find out whether the misconduct as alleged in
the chargesheet as on demur is such as would squarely fall
within the aforementioned three clauses, and every
hypothetical case would be excluded from further
consideration.
The appellant company has in all framed 8 independent
charges divided into clauses 2 (a) to 2 (h) of the charge-
sheet dated June 6 1977. The Labour Court has permitted the
appellant company to hold an enquiry in respect of charges
under heads 2 (a) and 2 (b). Therefore, they need no
consideration at our hands. Under the head 2 (c), the
misconduct attributed to the second respondent and his co-
workmen was that when the bus reached Anupshahr-Aligarh
road, all of them shouted in a violent manner, abused in
filthy language and beat M/s U.S Misra, R.S. Kaushik,
Prahlad, C.B. Agarwal, M.K. Wadhwa, V.K. Sharma, A.C.
Saxena, Nilmony Bhakta and Chaitanya Kumar and other loyal
workmen with shoes, chappals and sticks. Under head 2 (d),
the same misconduct is attributed when the bus reached the
approach road to Central Dairy Farm, further adding that the
clothes of loyal workmen were torn. Under head 2(e), it is
alleged that at the same place, Mr. A.K. Patro and Mr. G.S.
Haldia who were ahead of the bus travelling in a car and who
on seeing the incident alighted from the car, but they were
surrounded and forced to drive away from the scene. Under
heads 2(f) and 2(g), the misconduct alleged is that some
property was snatched from the workmen travelling in the bus
and they were threatened with dire consequences if they
returned to work during the period of strike. Under head
2(h), the misconduct attributed is that loyal workmen were
forced to give promise that they will not go to work during
the period of strike and repeatedly holding out threats of
murdering them and their families.
The question is : even if uncontroverted the
allegations of misconduct set out in the chargesheet
extracted above would be
236
covered by clauses 10, 16 and 30 of S.O. 22. In other words,
upon their construction what is the scope and ambit so far
as time-place aspect is concerned of the clauses 10, 16 and
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30 of S.O. 22.
Clauses 10, 16 and 30 of the S.O. 22 read as under :
"22. The following acts or omissions will be treated as
misconducts :-
(10) Drunkenness, fighting, indecent or disorderly
behaviour, use of abusive language, wrongfully
interfering with the work of other employees or conduct
likely to cause a breach of the peace or conduct
endangering the life or safety of any other person,
assault or threat of assault any act subversive of
discipline and efficiency and any act involving moral
turpitude, committed within the premises of the
establishment, or in the vicinity thereof;
(16) Conduct of a workmen singly or in combination
with others endangering the lives of the safety of
other workmen or endangering the safety of the
company’s premises, machinery or equipment;
(30) Being rude towards officers, employees,
customers of and visitors to the company."
The submission which found favour with the High Court
is that all these various acts of misconduct collocated in
clause 10 in order to be a misconduct punishable under S.O.
23 must be committed within the premises of the
establishment or in the vicinity thereof, and that the situs
of misconduct as set out in the chargesheet will show that
alleged acts of misconduct occurred far away from the
establishment of the appellant company and therefore, clause
10 of S. O. 22 would not be attracted. Undoubtedly, looking
to the language of clause 10 of S.O. 22 of the certified
Standing Orders applicable to the company framed in English,
the High Court found some difficulty in holding that the
expression ‘committed within the premises of the
establishment, or in the vicinity thereof’ would only
qualify the expression ‘any act subversive of discipline and
efficiency and any act involving moral turpitude’ but not
the earlier portion of
237
clause 10 which sets out various acts of misconduct such as
drunkenness, fighting, indecent or disorderly behaviour etc.
Says the High Court:
"We agree that in sub-clause 10 of clause 22 the
word ‘committed’ must be held to govern only to ‘an act
subversive of discipline and efficiency’ and ‘any act
involving moral turpitude’ and does not apply to
conduct of the character mentioned in the earlier part
of sub-clause."
But the High Court got over the difficulty by referring to
the Hindi version of clause 10 of S.O. 22, which starts with
the recital :
"Within the premises of the establishment. or in
the vicinity thereof, such acts as drunkenness,
fighting......................."
After reading the Hindi version, the High Court proceeded to
hold that Sec. 9 of the Industrial Employment (Standing
Orders) Act, 1946 (‘Act’ for short) requires the posting of
standing orders in English and in the language understood by
the majority of the workmen on special boards to be
maintained for the purpose at or near the entrance through
which the majority of the workmen enter the industrial
establishment and in all departments thereof where the
workmen are employed, and therefore, the Hindi version of
the standing order which the workmen must have read and
understood must on the principle of contemporanee expositio
deserves acceptance. In reaching this conclusion, the High
Court relied upon the decision of this Court in D.B. Gupta &
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Co. & Ors. v. Delhi Stock Exchange Association Ltd. While
questioning the correctness of the decision of the High
Court, that clause 10 would comprehend misconduct therein
mentioned committed within the premises of the establishment
or in the vicinity thereof, it was not only not disputed but
in fact conceded that in view of the provision contained in
sec. 9 of the Act the High Court was perfectly justified in
looking at the Hindi version of the certified Standing
Orders.
Therefore, the primary question that needs
consideration is whether the various acts of misconduct
collocated in clause 10 would constitute misconduct
punishable under S.O. 23, if committed
238
within the premises of the establishment or in the vicinity
thereof or irrespective of the time-place content, they are
per se such acts of misconduct that they would be punishable
notwithstanding where and when they were committed.
Every industrial establishment to which the Act applies
is under a statutory obligation to draw up and submit to the
Certifying Officer five copies of the draft standing orders
for adoption in the industrial establishment (Sec. 3). Sec.
5 requires the Certifying Officer to forward the copy of the
draft standing order to the trade union, if any, of the
workmen, or where there is no such trade union, to the
workmen in such manner as may be prescribed, together with a
notice in the prescribed form requiring them to submit their
objections, if any Sub-sec. (2) of sec. 5 requires the
Certifying Officer to decide after hearing the
representatives of the employer and the trade union or the
workmen : whether or not any modification of or addition to
the draft submitted by the employer is necessary. Such
certified standing orders shall be filed by the Certifying
Officer in a register in the prescribed form maintained for
the purpose and the Certifying Officer shall furnish a copy
thereof to any person applying therefor on payment of the
prescribed fee. Sec. 12 excludes oral evidence having the
effect of adding to or otherwise varying or contradicting
standing orders as finally certified under the Act. Sec.
13C, which is in part pari materia with Sec. 11A of the U.P.
Industrial Disputes Act, 1947 confers jurisdiction on the
Labour Court constituted under the Industrial Disputes Act,
1947 to entertain an application for interpretation of a
standing order certified under the Act. The scheme of the
Act would show that the certified standing orders have more
or less a statutory flavour. If that be so, ordinary canons
of construction of a statute would be attracted where a
dispute arises about the construction or interpretation of a
certified standing order.
No canon of construction of a statute is more firmly
established than this that the purpose of interpretation is
to give effect to the intention underlying the statute and
therefore unless the grammatical construction leads to an
absurdity, it is safe to give words their natural meaning
because the framer is presumed to use the language which
conveys the intention. If two constructions are possible, it
is equally well-established that the construction which
advances the intention of the legislation, remedies the
mischief to thwart which it is enacted should be accepted.
239
In the days of laissez-faire when industrial relation
was governed by the harsh weighted law of hire and fire the
management was the supreme master, the relationship being
referable to contract between unequals and the action of the
management treated almost sacrosanct. The developing notions
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of social justice and the expanding horizon of socio-
economic justice necessitated statutory protection to the
unequal partner in the industry namely, those who invest
blood and flesh against those who bring in capital. Moving
from the days when whim of the employer was suprema lex, the
Act took a modest step to compel by statute the employer to
prescribe minimum conditions of service subject to which
employment is given. The Act was enacted as its long title
shows to require employers in industrial establishments to
define with sufficient precision the conditions of
employment under them and to make the said conditions known
to workmen employed by them. The movement was from status to
contract, the contract being not left to be negotiated by
two unequal persons but statutorily imposed. If this
socially beneficial act was enacted for ameliorating the
conditions of the weaker partner, conditions of service
prescribed thereunder must receive such interpretation as to
advance the intendment underlying the Act and defeat the
mischief.
After reading clause 10, Mr. Shanti Bhushan contended
that the expression ‘committed within the premises of the
establishment or in the vicinity thereof’ can qualify only
the expression ‘any act subversive of discipline and
efficiency and any act involving moral turpitude’ but not
the earlier portion of the clause. Numerous acts of
misconduct have been collected in clause 10 such as
drunkenness, fighting, indecent or disorderly behaviour, use
of abusive language, wrongfully interfering with the work of
other employees etc. Says Mr. Shanti Bhushan that these acts
of misconduct are per se misconduct that each one of them
cannot have any correlation to the time or place where it is
committed and each one of it is an act of misconduct
irrespective of the time and place where it is committed.
Expanding the submission, it was urged that drunkenness is
such a socially reprehensible action that if it is committed
within the premises of the establishment or in the vicinity
thereof or anywhere else at any point of time it would none
the less be an act of misconduct comprehended in clause 10
and punishable under standing order 23. If this construction
were even to be accepted the employer will have more power
than the almighty State because State chooses to punish
drunkenness in public place. But on the construction
canvassed for if a man consumes liquor in
240
his own house with the doors closed and gets drunk, the
employer can still fire him. If a man uses abusive language
towards his close relation in his own house with closed
door, the employer would be entitled to fire him, and this
approach overlooks the purpose of prescribing conditions of
service by a statute. To enable an employer to peacefully
carry on his industrial activity, the Act confers powers on
him to prescribe conditions of service including enumerating
acts of misconduct when committed within the premises of the
establishment. The employer has hardly any extra territorial
jurisdiction. He is not the custodian of general law and
order situation nor the Guru or mentor of his workmen for
their well regulated cultural advancement. If the power to
regulate the behaviour of the workmen outside the duty hours
and at any place wherever they may be was conferred upon the
employer, contract of service may be reduced to contract of
slavery. The employer is entitled to prescribe conditions of
service more or less specifying the acts of misconduct to be
enforced within the premises where the workmen gather
together for rendering service. The employer has both power
and jurisdiction to regulate the behaviour of workmen within
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the premises of the establishment, or for peacefully
carrying the industrial activity in the vicinity of the
establishment. When the broad purpose for conferring power
on the employer to prescribe acts of misconduct that may be
committed by his workmen is kept in view, it is not
difficult to ascertain whether the expression ‘committed’
within the premises of the establishment or in the vicinity
thereof’ would qualify each and every act of misconduct
collocated in clause 10 or the last two only, namely, ‘any
act subversive of discipline and efficiency and any act
involving moral turpitude’. To buttress this conclusion, one
illustration would suffice. Drunkenness even from the point
of view of prohibitionist can at best be said to be an act
involving moral turpitude. If the misconduct alleging
drunkenness as an act involving moral turpitude is charged,
it would have to be shown that it was committed within the
premises of the establishment or vicinity thereof but if the
misconduct charged would be drunkenness the limitation of
its being committed within the premises of the establishment
can be disregarded. This makes no sense. And it may be
remembered that the power to prescribe conditions of service
is not unilateral but the workmen have right to object and
to be heard and a statutory authority namely, Certifying
Officer has to certify the same.
Therefore, keeping in view the larger objective sought to be
achieved by prescribing conditions of employment in
certified
241
standing orders, the only construction one can put on clause
10 is that the various acts of misconduct therein set out
would be misconduct for the purpose of S.O. 22 punishable
S.O. 23, if committed within the premises of the
establishment or in the vicinity thereof.
What constitutes establishment or its vicinity would
depend upon the facts and circumstances of each case.
Mr. Shanti Bhushan, however, urged that the trend of
decisions indicates that the expression ’committed in the
premises of the, establishment or in the vicinity thereof’
indicates not the situs of the place where the misconduct is
committed but where the consequence of such misconduct
manifests or ensues. It was submitted that if the motivation
for committing an act of misconduct anywhere was to have an
adverse effect on the peaceful working in the industrial
establishment, then irrespective of the fact where the
misconduct was committed, it would be deemed to have been
committed within the premises of the establishment or in the
vicinity thereof. Reliance was placed on Mulchandani
Electrical and Radio Industries Ltd. v. The Workmen, wherein
the language in which the relevant standing order was
couched read as under:
"(1) Commission of any act subversive of
discipline or good behaviour within the premises or
precincts of the establishment."
The misconduct alleged was that the delinquent workmen while
travelling in a train between Thana and Mulund assaulted
another workman who was on his way home after day’s work.
And this led to a complaint by some of the colleagues of the
victim submitting a memorandum to the management of protest
against the assault on the colleague. Repelling the
contention on behalf of the workmen, this Court held as
under:
"In our opinion, on a plain reading of the clause,
the words "within the premises or precincts of the
establishment" refer not to the place where the act
which is subversive of discipline or good behaviour is
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committed but where the consequence of such an act
manifests itself. In other words, an act wherever
committed, if it has the one effect of subverting
discipline or good behaviour
242
within the premises or precincts of the establishment,
will amount to misconduct under Standing Order 24 (1).
We are unable to agree that Standing Order 24 (1)
leaves out of its scope an act committed outside though
it may result in subversion of discipline or good
behaviour within the premises or precincts of the
establishment in question. Such a construction in our
view would be quite unreasonable."
The decision proceeds on the language of the standing order
which came for interpretation before this Court. There is a
marked difference between the language of clause 10 of S.O.
22 under which a action is proposed to be taken by the
appellant in this case and S.O. 24 (1) that came for
interpretation in that case. Clause (1) of S.O. 24 which was
before the Court in that case did not refer to such specific
acts of misconduct as drunkenness, fighting, indecent or
disorderly behaviour, use of abusive language etc. If a
workman is involved in a riot or indulge in fighting
somewhere far away from the premises of the establishment,
it has no causal connection with his performance of duty in
the industrial establishment in which he is employed.
Further in that case, the Court put a wide construction on a
penal measure but did not choose to set out its reasons for
departing from the well-established principle that penal
statutes generally receive a strict construction. ’A statute
is regarded as penal for the purpose of construction if it
imposes fine, penalty or forfeiture other than penalty in
the nature of liquidation of damages or other penalties
which are in the nature of civil remedies. It is a general
rule that penal enactments are to be construed strictly and
not extended beyond their clear meaning.’(1) It cannot be
seriously questioned that S.O. 22 is a penal statute in the
sense that it provides that on proof of misconduct penalty
can be imposed. It cannot be disputed that it is a penal
statute. It must therefore, receive strict construction,
because for a penalty to be enforced it must be quite clear
that the case is within both the letter and the spirit of
the statute. If the expression ’committed within the
premises of the establishment or in the vicinity thereof’ is
given a wide construction so as to make the clause itself
meaningless and redundant, the penal statute would become so
vague and would be far beyond the requirement of the
situation as to make it a weapon of torture. A clause with a
statutory flavour ’like legislation must at all costs
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be interpreted in such a manner that it could not operate as
a rogue’s charter.’ If any misconduct committed anywhere
irrespective of the time-place content where and when it is
committed is to be comprehended in clause 10 merely because
it has some remote impact on the peaceful atmosphere in the
establishment, there was no justification for using the
words of limitation such as ’committed within premises of
the establishment or in the vicinity thereof’. These are
words of limitation and they must cut down the operation of
the clause. Therefore, these words of limitation must
receive their due share in the interpretation of clause 10
and clause 10 cannot receive such a construction as to make
the words of limitation wholly redundant.
Reference was also made to Central India Coalfields
Ltd. Calcutta v. Ram Bilas Shobnath in which scope and ambit
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of S.O. 29(5) came up for consideration before this Court.
The Industrial Tribunal had held that the alleged misconduct
had taken place outside the working hours as well as outside
the pit where the respondent had to discharge his duties and
accordingly he could not be punished under S.O. 37. This
Court while allowing the appeal of the employer observed
that ’normally this standing order would apply to the
behaviour on the premises where the workmen discharge their
duties and during the hours of their work." It was further
observed that ’it may also be conceded that if a quarrel
takes place between workmen outside working hours and away
from the coal premises that would be a private matter which
may not fall within Standing Order No. 29(5)." This Court
then observed that in the special circumstances of this case
it is clear that the incident took place in the quarters at
a short distance from the coal-bearing area. If the incident
occurred in the quarters occupied by the workmen who were
working in a nearby coal bearing area, one can safely
conclude that the incident occurred in the vicinity of the
establishment and that was the governing factor which swayed
the decision. And the decision was reached as specifically
stated in the special circumstances of the case while
leaving no trace of doubt about the normal approach in law
to the construction of a standing order that it would apply
to the behaviour on the premises where the workmen discharge
their duties and during working hours of their work. This
clearly imports time-place content in the matter of
construction.
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This decision would rather clearly indicate that the
misconduct prescribed in a standing order which would
attract a penalty has a causal connection with the place of
work as well as the time at which it is committed which
would ordinarily be within the establishment and during duty
hours.
Reference next was made to Lalla Ram v. Management of
D.C.M. Chemical Works Ltd. & Anr. In that case one Shyam
Singh, who was Assistant Security Officer of the respondent-
company in discharge of his official duty attempted to
prevent an encroachment and unauthorised construction on the
immovable property belonging to the company by appellant
Lalla Ram, who in turn manhandled the Assistant Security
Officer, hurled highly provocative invectives at him and his
companions, and bade them to quit on pain of dire
consequences. The facts have their own tale to tell.
Assistant Security Officer while performing his duty
preventing unauthorised encroachment of the property
belonging to the company was manhandled. There should be no
doubt in the mind of anyone that the incident occurred on
the premises of the establishment or in the vicinity
thereof. It may, however, be mentioned that in this
decision, there is no reference to the decision of this
Court in Molchandani Electrical and Radio Industries Ltd.
case.
Reference was also made to Tata Oil Mills Co. Ltd. v.
Its Workmen. This case should not detain us for a moment
because the standing order with which the court was
concerned with in that case in terms provided ’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.’ Mr. Shanti
Bhushan, however, urged that the judgment does not proceed
on the construction of the expression ’without’ in the
relevant standing order but the ratio of the decision is
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that purely private and individual dispute unconnected with
employment between the workmen cannot be the subject matter
of enquiry under the standing order but in order that the
relevant standing order may be attracted it must be shown
that the disorderly or riotous behaviour had some rational
connection with the employment of the assailant and the
victim. Approaching the matter from this angle, it was urged
that in the present case the
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chargesheet under clauses 2(c) to 2(h) clearly and
unmistakably alleged that the ’loyal workmen’ were
threatened with dire consequences with a view to frightening
them away from responding to the duty and this provides the
necessary link between the disorderly behaviour and the
employment both of the assailant and victim. Even where a
disorderly or riotous behaviour without the premises of the
factory constitutes misconduct, every such behaviour
unconnected with employment would not constitute misconduct
within the relevant standing order. Therefore, even where
the standing order is couched in a language which seeks to
extend its operation far beyond the establishment, it would
none the less be necessary to establish causal connection
between the misconduct and the employment. And that is the
ratio of the decision, and not that wherever the misconduct
is committed ignoring the language of the standing order if
it has some impact on the employment, it would be covered by
the relevant standing order. In order to avoid any ambiguity
being raised in future and a controversial interpretation
question being raised, who must make it abundantly clear and
incontrovertible that the causal connection in order to
provide linkage been the alleged act of misconduct and
employment must be real and substantial, immediate and
proximate and not remote or tenuous. An illustration would
succinctly bring out the difference. One workman severely
belaboured another for duty on the next day. Would this
absence permit the employer to charge the assailant for
misconduct as it had on the working in the industry. The
answer is in the negative. The employer cannot take
advantage to weed out workmen for incidents that occurred
far away from his establishment.
Reference was next made to Bharat Iron Works v.
Bhagubhai Balubhai Patel & Ors. The allegation was of
vicitimisation which found favour with the Tribunal and the
High Court. This Court while allowing the appeal of the
employer held that the Tribunal committed a manifest error
of law in reaching the conclusion that the management was
guilty of victimisation. We fail to see how this decision
has any relevance to the point under discussion in this
case.
In British India Corporation Ltd v. Bhakshi Sher Singh
and Ors., the respondent-workmen entered the club set up by
the appellant and misbehaved with all and sundry present
there. He was
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persuaded to leave and when he went out, he kept on abusing
the official of the club. He was charge-sheeted. An enquiry
followed and he was dismissed. The order of dismissal was
set aside by the Tribunal but was restored by this Court in
appeal by the Company. There was no suggestion that the club
premises did not form part of the establishment of the
Company. The decision appears to be on the facts of the case
only without the slightest reference to the question whether
the place where misconduct was committed had any relevance.
Mr. Shanti Bhushan also relied upon Saurashtra Salt
Manufacturing Co. v. Bai Valu Raja and Ors. and General
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Manager, B.E.S.T. Undertaking, Bombay v. Mrs. Agnes, both of
which are cases concerned with Sec. 3 of the Workmen’s
Compensation Act, 1923 and are of no assistance for the
present purpose.
Having examined the matter both on principle and
precedent, it would clearly emerge that clause 10 of S. O.
22 which collects various heads of misconduct must be
strictly construed being a penal provision in the sense that
on the proof a misconduct therein enumerated, penalty upto
and inclusive of dismissal from service can be imposed. We
see no reason for departing from the well-established canon
of construction that penal provisions must receive strict
construction, and not extended beyond their normal
requirement. The framer’s intention in using the expression
’committed within the premises of the establishment or in
the vicinity thereof’ are the words of limitation and they
must receive due attention at the hands of the interpreter
and the clause should not receive such broad construction as
to render the last clause redundant.
It was next contended that while misconduct is
enumerated in S.O. 22, the punishment is prescribed in S.P.
23 and the expression ’misconduct’ in S.O. 23 would
comprehend any misconduct irrespective of the fact whether
it is enumerated in S.O. 22 or not. The preamble of S.O. 23
reads as under:
"23 (a) Any workman who is adjudged by the manager
on examination of the workman, if present, and
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of the facts to be guilty of misconduct is liable to
be......"
The submission is that the expression ’misconduct’ under
S.O. 23 is not qualified as the one set out in S.O. 22 and
therefore, any other act of omission or commission which
would per se be misconduct would be punishable under S.O. 23
irrespective of the fact whether it finds its enumeration in
S.O. 22. The Act makes it obligatory to frame standing
orders and get them certified. Sec. 3 (2) requires the
employers in an industrial establishment while preparing
draft standing orders to make provision in such draft for
every matter set out in the Schedule which may be applicable
to the industrial establishment, and where model standing
orders have been prescribed, shall be, so far as is
practicable, in conformity with such model. Item 9 of the
Schedule provides ’suspension or dismissal for misconduct,
and acts or omissions which constitute misconduct’. It is
therefore, obligatory upon the employer to draw up with
precision those acts of omission and commission which in his
industrial establishment would constitute misconduct.
Penalty is imposed for misconduct. The workmen must
therefore, know in advance which act or omission would
constitute misconduct as to be visited with penalty. The
statutory obligation is to prescribe with precision in the
standing order all those acts of omission or commission
which would constitute misconduct. In the fact of the
statutory provision it would be difficult to entertain the
submission that some other act or omission which may be
misconduct though not provided for in the standing order
would be punishable under standing order 23. Upon a
harmonious construction, the expression ’misconduct’ in S.O.
23 must refer to those acts of omission or commission which
constitute misconduct as enumerated in standing order 22 and
none else. However, in this connection, Mr. Shanti Bhushan
drew our attention to Mahendra Singh Dhantwal v. Hindustan
Motors Ltd. & Ors. In that case in a second round of
litigation between the parties the Industrial Tribunal set
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aside the order of dismissal of the workmen and ordered
reinstatement with full back wages. In a writ petition filed
by the Company under Art. 226 of the Constitution, a learned
Single Judge of the High Court declined to interfere with
the award holding that ’the reason might have been the old
reason of dismissal’ and that the "circumstances relied on
by the Tribunal cannot be characterised as unreasonable."
The Company carried the matter to the Division Bench of the
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High Court which accepted the appeal observing that unless
contravention of Sec. 33 of the Industrial Disputes Act is
established, the Industrial Tribunal would have no
jurisdiction to entertain an application under Sec. 33A. In
terms it was held that unless it is established that there
has been discharge for misconduct, the Industrial Tribunal
had no jurisdiction to set aside the order of termination in
an application under Sec. 33A. In the appeal by certificate
granted by the High Court, the workman contended that Sec.
33 may be contravened in varieties of ways and the only
question that needs to be examined is whether there was a
contravention by the employer in that it did not make any
application to the Tribunal for the approval of the order of
termination of service of the workman. It is in this context
that while allowing the appeal of the workman this Court
observed as under:
"Standing orders of a company only describe
certain cases of misconduct and the same cannot be
exhaustive of all the species of misconduct which a
workman may commit. Even though a given conduct may not
come within the specific terms of misconduct described
in the standing orders, it may still be a misconduct,
in the special facts of a case, which it may not be
possible to condone and for which the employer may take
appropriate action. Ordinarily, the standing orders may
limit the concept but not invariably so."
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 stared 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 maintainable. 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 penalty. The law will have to
move two centuries backward to accept such a construction.
But it is not necessary to go so far because in
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Salem Erode Electricity Distribution Co. Ltd. v. Salem Erode
Electricity Distribution Co. Ltd. Employees Union 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
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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 in which this Court held that any condition
of service if inconsistent with certified standing orders,
the same would 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 economic 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 belied their faith."
Lastly we may refer to Workmen of Lakheri Cement Works Ltd.
v. Associated Cement Companies Ltd. 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 otherwise. Relying upon the
earlier decision of this Court in Rohtak Hissar District
Electricity Supply Co. Ltd. v. State of Uttar Pradesh & Ors
the Court held that
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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 nonetheless 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 Bushan 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.
That leaves for our consideration clauses 16 and 30.
They from an integral part of a code and the setting and
purpose underlying these two clauses 16 and 30 must receive
the same construction which clauses 10 received. Therefore,
for the reasons herein indicated, the heads of charges 2(c)
to 2(h) would not be comprehended in clause 10, 16 and 30 of
the S.O. 22 applicable to the appellant-Company. We broadly
agree except for one aspect specifically mentioned with the
conclusion of the High Court. Accordingly, no case is made
out for interfering with the interpretation put by the
Labour Court and confirmed by the High Court on relevant
standing order. The appeal therefore, fails and is dismissed
with costs quantified at Rs. 5,000.
H.L.C. Appeal dismissed.
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