JUDGMENT
M.M. Quazi, J.
1. The present Letters Patent Appeal arises out of the order passed by the learned Single Judge dismissing the writ petition filed by the appellant.
2. The respondent No. 2 was an employee of the appellant. His services came to be terminated vide notice dated 27-7-1980, on the ground that the demanded and accepted bribe of Rs. 20/- from another employee in order to grant him leave. He, therefore, filed a complaint under section 28(1) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as ‘the Act’) contending that the dismissal was in utter disregard to the principles of natural justice, inasmuch as while inflicting the punishment of dismissal his past unblemished service record was not taken into consideration. According to him, he had put in 30 years service and had earned good testimonials from the Department. According to him, the order was in contravention of the mandatory requirement of the Standing Order No. 25(6), which reads thus :
“25(6). In awarding punishment under this standing order, the Manager shall take into account the gravity of misconduct, the previous record, if any of the clerk and any other extenuating or aggravating circumstances that may exist.”
The Labour Court vide order dated 29-7-1981 recorded a finding that the domestic enquiry was legal, proper and as per the principles of natural justice. After having recorded this preliminary finding, the Labour Court proceeded to consider the quantum of punishment and accordingly gave further opportunity to the delinquent to show cause in the matter of punishment. The Labour Court ultimately vide order dated 30-7-1981 recorded a finding that the sentence of dismissal was legal and proper, particularly in view of the fact that the delinquent was found to have accepted the bribe of Rs. 20/- from another employee.
3. This order was challenged by way of revision before the industrial Court at Nagpur. The Industrial Court allowed the revision and quashed the order of dismissal and directed reinstatement with full back wages. The Industrial Court allowed the revision essentially on the ground that the order of dismissal was passed without complying with Standing Order 25(6). This order was challenged by the Management by way of writ petition before the High Court. The matter came up for hearing before the learned Single Judge, who dismissed the writ petition and confirmed the order of the Industrial Court, and hence the present Letters Patent Appeal.
4. Mr. Deshpande urged the following points for our consideration, viz. (1) the past service record is relevant only when it has any bearing on the punishment to be imposed; (2) Non-consideration of past service record is inferred merely from the fact of omission of it from the order of dismissal, (3) the past service record will come up for consideration when the Labour Court finds that the punishment imposed is disproportionate, (4) without considering the proportionate or disproportionate nature of the punishment it could not be said that the order of dismissal was bad, (5) the Labour Court should have given an opportunity to the Management to find out whether the punishment of dismissal was proper in view of the past record. Mr. Deshpande vehemently submitted that the courts below have drawn an inference that the Management did not taken into consideration the past service record of the delinquent merely because the same has not been referred to in the termination order. In other words, he suggested that the past service record of the delinquent was taken into consideration even though it has not been so referred to in the dismissal order. It is difficult to accept this contention. We have gone through the complaint as well as the written statement filed by the Management. In the complaint it has been specifically asserted by the delinquent that the Management did not take into consideration his past unblemished service record of 30 years and had that been taken into consideration, surely the Management would not have imposed the extreme penalty of dismissal. It is expected that this important averment in the complaint should be specifically replied to in the written statement. After having gone through the written statement, we are satisfied that the said averment has not been denied by the Management in the written statement. In our view, the learned Single Judge was perfectly right in holding that the Management would be deemed to have impliedly accepted the allegations of the delinquent that his past service record was not considered while inflicting the punishment. The written statement is fairly exhaustive. It deals with several aspects of the case and it is surprising that it does not even remotely touch the positive averment in the complaint that the past service record of the delinquent was not taken into consideration. Thus, in our view, there is no substance in the contention advanced by Shri Deshpande that the Management took into consideration the past service record of the delinquent while inflicting the punishment. We have already quoted above the Standing Order 25(6). It is mandatory and it clearly casts an obligation on the Management that it shall take into consideration the past service record or any other extenuating circumstance at the time of inflicting the sentence. The omission on the part of the Management to take into consideration the past service record of the delinquent vitiates the proceedings.
5. Mr. Deshpande then submitted that at any rate the Labour Court has taken into consideration the past service record. He has invited our attention to paragraph 4 of the order dated 30-7-1981 passed by the Labour Court in support of his contention. It does appear that the Labour Court has taken into consideration that the delinquent had 30 years unblemished service record. However, according to the Labour Court, the nature of the offence was such that there could be no question of any other sentence except that of dismissal. According to Mr. Deshpande, all the courts have concurrently recorded a finding that the domestic enquiry was legal and proper and that there was no violation of the principles of natural justice. Therefore, according to him, there was no need to reverse the order of dismissal, particularly when the Labour Court took into consideration the past service record of the delinquent. In our view, the illegality that has been committed by the Management in not taking into consideration the past service record of the delinquent, as required by Standing Order 25(6), vitiated the entire proceedings. The illegality goes to the very root of the matter and it would not be cured even if the courts considered this aspect and came to the conclusion that looking to the nature of the offence the punishment of dismissal was just and proper.
6. In this behalf, Mr. Thakur has invited our attention to the decision of this Court reported in 1974 Labour Law Journal (Vol. II) page 184 : Borosil Glass Works Limited v. M.C. Chitale & Richard M. D’Souza, the relevant portions of which read this :
“13. Mr. Shetye, the learned Advocate for the second-respondent has drawn our attention to the case reported, namely, Worker in Buckingham and Carnatic Mills, Madras v. Buckingham and Carnatic Mills Madras, (1970)I, L.L.J. 26, wherein the Supreme Court has held that the Standing Order certified under the Industrial Employment Standing Orders Act, 1948 became part of the statutory terms and conditions of service between industrial employer and employee and they will govern the relationship between the parties. We are of the opinion that the same holds good in respect of the model standing orders where there are no standing orders certified under the Industrial Employment Standing Orders Act. Admittedly the Standing Order 25(6) will govern the parties in this case and the mandatory provisions of the said standing orders have to be complied with.
14. Mr. Shetye on behalf of the 2nd respondent, has also drawn our attention to the decision of the Division Bench of the Madras High Court in the case of The Management of Mahalakshmi Textile Mills, Pasumalai, Madurai v. The Presiding Officer, Labour Court, Madurai and others, , wherein it has been held that-
“Where the Standing Order framed in respect of an industry specifically providing that, in awarding punishment for misconduct of a workman the management shall take into account the gravity of the misconduct, the previous record, if any of the workman and any other extenuating or aggravating circumstances that may exist, having regard to the mandatory nature of the Standing Order, there is no option left to the management to neglect these relevant factors. When these factors have not been taken into consideration by the management while passing an order of dismissal of a workman, such order cannot be sustained.”
15. These observations are clearly applicable to the facts of the present case. We may further observe that in the present case, it is patent on the fact of the report of the Enquiry Officer as well as the impugned order of punishment that the petitioner did not, in awarding the punishment, take any account of the past record of the respondent No. 2, which is imperatively required by Standing Order 25(6). Looking into the past record is required by the Standing Order while awarding punishment by the employer. There is no knowing that the petitioner would have awarded the extreme penalty of discharge had the past record been looked into. The omission to comply with Standing Order 25(6) was an independent ground upon which the Tribunal was entitled to reject the application for approval of discharge under section 33(2)(b) of the Industrial Disputes Act, 1947.”
7. We may here also refer to the decision of the Supreme Court reported in 1970 Labour Law Journal, page 1, The Management of Travancore Titanium Products Ltd. v. Their Workmen. The Supreme Court observed as under :
“Mr. Pai for the appellant attempted to argue that the failure of the appellant to give three clear days notice of the intended enquiry was more technical than substantial. According to Mr. Pai, Pillai had notice of two and half days and that, Mr. Pai suggests, should be taken to be substantial compliance with the requirement of the relevant standing order. We are not impressed by this argument. Since the standing order insists upon notice of three clear days being given to the workman, failure to comply with the standing order does introduce an infirmity in the proceedings.”
8. Mr. Deshpande invited our attention to Item 1(f) of Schedule IV to the Act, which reads as under :
“1. To discharge or dismiss employees—
x x x x x (f) In utter disregard of the principles of natural justice in the conduct of domestic enquiry of domestic enquiry or with undue haste."
According to Mr. Deshpande, there can be no question of violation of principles of natural justice or for that matter any undue haste in the instant case since the courts below have recorded a finding that the domestic enquiry was proper and legal. In our view, such a restricted meaning cannot be given to the words ‘principles of natural justice’. The fact that the Standing Orders are mandatory and the same were since not complied with, that by itself, in our view, would amount to breach of the principles of natural justice in a given situation and particularly in the peculiar facts and circumstances of the present case where delinquent had 30 years unblemished service record of that has not been taken into consideration. Thus, in our view, the Industrial Court and the learned Single Judge were perfectly right in setting aside the order of dismissal and directing reinstatement of the respondent No. 2. The appeal is wholly without substance and the same is dismissed with costs.