IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 21/02/2006 Coram The Hon'ble Mr.JUSTICE S.RAJESWARAN W.P.No.21813 of 2000 and W.P.No. 6320 of 2001 The Manager Public and Industrial Relations Nuclear Power Corporation Madras Atomic Power Station Kalpakkam Kancheepuram District .. Petitioner, W.P.21813/00 -Vs- 1.P.Chnnnasamy .. 1st respondent,
W.P.No.21813/00 &
Petitioner,W.P.6320/01
The Manager
Personnel & Industrial Relations
Nuclear Power Corporation
Kalpakkam .. 1st respondent,W.P.6320/01
2.Central Government Industrial Tribunal
-cum-Labour Court
City Civil Court Buildings
High Court
Madras.600 104
.. 2nd respondent, W.P.6320/01
Central Government Industrial Tribunal
-cum-Labour Court
Sastri Bhavan, Nungambakkam
Chennai. .. 2nd respondent,W.P.6320/01
Writ Petition in W.P.No.21813/2000 filed under Article 226 of the
Constitution of India seeking to issue a writ of certiorari as stated therein
and W.P.No.6320/2001 filed under Article 226 of the Constitution of India for
the relief of writ of certiorarified mandamus as stated therein.
For Petitioner : Mr.N.Jothi, assisted by
Mr.L.P. Shanmugasundaram
For Respondents : Mr. M. Gnanasekar
:COMMON ORDER
The management has filed the writ petition In W.P.No.21813/2000 for
the relief of writ of certiorari to quash the award passed in I.D.No.1/2000,
dated 22.11.2000 by the 2nd respondent.
2. Writ Petition in W.P.No.6320/2001 has been filed P.Chinnasamy, the
workman for the relief of certiorarified mandamus, to call for the records
relating to I.D.No.1/2000, dated 22.11.2000 on the file of the 2nd respondent,
quash the same insofar as denying the halfbackwages is concerned and
consequently seeking for reinstatement with full back-wages and other
benefits.
3. Since the issue involved in both the writ petitions relate to the
award passed in I.D.No.1/2000, dated 22.11.2000 passed by the 2nd respondent,
both the writ petitions are taken together and common order is being passed
with the consent of the learned counsel for both sides.
4. W.P.No.21813/2000:- This writ petition has been filed against the
award passed in I.D.No.1/2000, wherein the 2nd respondent has passed an order
of reinstatement of the first respondent/workman by setting aside the order of
removal from service passed by the disciplinary authority, as confirmed by the
appellate authority and further directions to the management to reinstate the
1st respondent with some other benefits. However it is stated by the
petitioner-management that no conditions have been stipulated by the 2nd
respondent-tribunal that are to be followed. It is further stated that the
1st respondentworkman was appointed in the Madras Atomic Power Project (as it
was called by then) during March 1971. At the time of appointment, he has
made a declaration, in condition No.9 which reads thus:-
“No person who has more than one wife living shall be eligible for appointment
to Government Services. A declaration to the effect that you are unmarried or
have only one wife living as the case maybe will have to be signed by you at
the time of appointment (form enclosed). In the event of declaration being
found to be incorrect after your appointment in this Department you will be
liable to be dismissed form service.”
Accepting this declaration, the 1st respondent-workman has also signed the
order on 3.3.1971 and entered into service. As per this if any declaration is
found to be incorrect, he could be removed from service. It is also stated
that at the time of joining service in the family benefit details, he has
declared that he got married to one Kalyani and also indicated the names of
P.C.lakshmi as his daughter and P.C.Devan as his son born to him on 10.5.1973
and 15.7.1976 respectively. His entire family availed medical facilities
provided by the management for all the family members. According to the
petitioner, he suddenly introduced another woman by name Mrs.S.Muthu and
further introduced the names of C.Premavathy, C.Thilakavathi, as daughters and
C.Magesh as his son. These two daughters and a son were born through the
second wife S.Muthu. Thus the 1st respondent-workman had performed bigamous
marriage while his first wife Mrs.Kalyani was alive. On the basis of the
information that the 1st respondent has contracted the second marriage when
the first wife was alive and when the said marriage was subsisting, the
petitioner issued a charge sheet to the 1 st respondent. A domestic enquiry
was conducted by the enquiry officer by absorbing all the procedures. The
findings of the enquiry officer stood against the 1st respondent. On perusal
of the record it was further found that the 1st respondent nominated his first
wife Kalyani as primary nominee, and for the purpose of L.T.C. and travelling
allowance also, he had declared Mrs.S.Kalyani as his wife, P.C.Lakshmi as his
daughter and Master Devan as his son. He had further declared that the
daughter and son are his legitimate children born to his legally married wife
Kalyani. While so, the 1st respondent had submitted a totally different
nomination for Death-cum-Retirement Gratuity declaring one Mrs.Muthu as his
wife the primary nominee and introduced P.C.Lashmi and P.C.Devan as
alternative nominees. It is also stated that the 1st respondent had admitted
the 2nd marriage and the birth of the children through her. Therefore, on the
basis of the materials and records available, the enquiry officer found the
1st respondent-workman was guilty of all charges. Consequently, the
disciplinary authority passed an order on 10.10.1998, after observing all the
formalities and fully adopting the principles of natural justice, removing him
from service. An appeal was filed by the 1st respondent to the appellate
authority which also confirmed the order of removal. Thereafter, it is
submitted that he raised an industrial dispute in I.D. No.1/2000 before the
2nd respondent, who passed an award on 22.11.2000, which is impugned in this
writ petition in W.P.No.21813/2000.
5. It is seen from the impugned award passed by the 2nd
respondenttribunal that the enquiry was very fair and proper and there was no
infirmity or any violation in the manner in which the same was conducted.
Thereafter, the 2nd respondent ultimately passed the impugned award directing
reinstatement of the 1st respondent in service with some conditions imposed by
the petitioner-management on only one ground, namely, the Industrial
Employment (Standing Orders) Act 1946 ( hereinafter called as the Act) which
contains the Rules framed by the Central Government which is also called as
the Industrial Employment ( Standing Orders Central Rules 1946, (hereinafter
called as the Rules) does not provide the bigamous marriage or getting
children through such a marriage as a misconduct. In short, the 2nd
respondent-tribunal has held that the act of marrying and getting children
through bigamous marriage during the lifetime of the first wife will not
amount to any act or omissions so as to treat the same as a misconduct in
terms of the standing orders/rules.
6. Learned counsel for the petitioner-management submitted that
though the Standing Orders as stated by the second respondent-tribunal would
not specify the bigamous marriage as a misconduct, it is a misconduct and a
serious offence in general law. The provisions of the Hindu Marriage Act,
1955 stipulate that bigamous marriage is prohibited. Moreover, he also
referred to the Criminal Procedure Code, Chapter XIV relating the prosecution
for offences against marriage under Section 198. Learned counsel has also
referred to the charge memo dated 1 8.6.1996, which reads thus:-
“ARTICLE I
That the said Shri P.Chinnaswamy, while functioning as Tradesman had married
another woman viz., Smt. Muthu while his first wife Smt. Kalyani was living.
As per the details of Master Medical Card, two children were born to him out
of his first wife, the first child in the year 1973 and the other on
15.7.1976. As per the details given by him later on three children were born
to him through Smt. Muthu, his 2nd wife with their dates of birth as 29.5.74,
3.8.76 and 20.12.78.
That the said Shri P.Chinnaswamy by marrying another woman while his
first is alive has acted in a manner i.e., unbecoming of a Corporation
employee.
ARTICLE II
That the said Shri P.Chinnaswamy while functioning as Tradesman in
MAPS suppressed the facts of his 2nd marriage with another woman viz., Muthu
and begetting following children while his first wife was also living.
1.C.Premavathy Daughter
2. C.Thilagavathy -do-
3. C.Makesh Son
Prior to introduction of CHS Scheme in DAE hospital i.e., on 16.5.85
he applied for availing medical facilities for these children whose names were
included in the Master card by deliberately excluding the name of his second
wife Smt. Muthu. Later on when CHSS was introduced in the DAE hospital, he
applied for inclusion of the following persons as his dependants who are being
the first wife and children born out of her:-
1.P.Chinnaswamy Self 15.6.45 2.Smt.Kalyani wife 43 years 3.P.C.Lakshmi daughter 10.5.73 4.P.C.Devan son 15.7.76
That the said Shri P.Chinnaswamy has by suppressing the facts of his
2nd marriage with another woman and begetting children has acted in a manner
that is unbecoming of a Corporation employee.
ARTICLE III:
That the said Shri P.Chinnaswamy while functioning as Tradesman in
MAPS had submitted a nomination dated 23.7.73 declaring Smt.Kalyani, his 1st
wife as primary nominee for the purpose of Provident Fund and had included her
as a family member for the purpose of LTC/TA. For availing medical facility
at the first instance he declared Smt. Kalyani as his wife and P.C.Lakshmi as
his daughter. Subsequently for availing medical facilities, he included
Ms.Thilagavathy, Ms.Premavathy and Master Makesh by declaring them as his
legitimate children although they were born through his second wife. During
July 1987 he submitted a nomination dated 14.7.87 for Death -cum- Retirement
Gratuity declaring Smt.Muthu as his wife and as primary nominee and C.
Premavathy, C.Thilagavathy, C.Makesh as alternative nominees. Later, when he
was absorbed in NPCIL, he gave nomination in favour of his 2nd wife and
children born out of 2nd wife leaving behind the first wife and children born
out of 1st wife.”
It is further submitted that in the letter dated 26.3.1997 written by the 1st
respondent-workman to the Department, wherein he has categorically admitted
the offence committed by him and pleads for forgiveness based on his past
experience in the petitioner-department. Learned counsel for the petitioner
has also referred to the claim statement made in I.D.No.1/2000, wherein the
1st respondent has stated that he has not committed any serious misconduct
like misappropriation or corruption or embezzlement but suo motu action had
been taken against the him in this case. The learned counsel for the
petitioner has stated that this contention of the 1st respondent-workman that
action has been taken against him as per the sweet will and pleasure of the
petitioner-management without any material cannot be considered at all for he
has violated the rules of the general law by contracting a second marriage.
Therefore, according to the learned counsel for the petitioner, on the basis
of the Standing Orders and the general law, action has been taken against the
1st respondent and there is no error committed by the disciplinary authority
in passing the order of removal against the 1st respondent. It is further
stated by the learned counsel that on the basis of the admissions made by the
1st respondent and the request for lesser punishment, the 2nd
respondent-tribunal has condoned the unbecoming act of the 1st respondent and
passed an order in his favour. However, learned counsel for the petitioner
reiterates that while accepting that the enquiry was fair and also that there
was clear admission on the part of the 1st respondent in respect of 2nd
marriage as contracted by him, the impugned award has been passed mechanically
on the ground that there was no clear provision in the Standing Orders
treating the bigamous marriage as misconduct. On that basis, it is his case
that the same should not be a ground for the 2nd respondent-tribunal to have
the order of removal of the 1st respondent-workman set aside and that it is
excessive and contrary to the gravity of the misconduct. Therefore, learned
counsel assails the impugned award of the 2nd respondent-tribunal on the
ground that it has not applied its mind and the provisions of the general law.
Learned counsel further added that it would only put a premium on the offences
of this nature to be committed by persons. He has also referred to the fact
that a person who commits murder should not rely upon the provisions of the
Standing Orders to say that it is not one of the misconduct as enumerated in
the Standing Orders thereby, he could be made to say that he should be
reinstated in service even after committing murder. Learned counsel has also
referred to the provisions of the Constitution of India, Part IV-A, Article
51-A wherein the fundamental duties have been enumerated. It is further
stated by the learned counsel that the Standing Orders cannot be taken as an
exhaustive one but it is only an illustrating provision wherein it is only
used as a model conduct for the workers’ behaviour in general. Whereas that
cannot be taken as a complete and exhaustive code for all the behaviour and
conduct of the workers. It is also stated by him that the 2nd
respondent-tribunal ought not to have gone beyond its jurisdiction and decided
the quantum of punishment imposed by the petitioner-management. Moreover, the
reasons for interfering with the detailed order passed by the
petitioner-management has not been given by the 2 nd respondent-tribunal.
Therefore, it is his contention that the impugned award challenged in these
writ petitions should be set aside and the order of removal passed by the
petitioner-management should be upheld.
7. In reply to the submissions put forth by the learned counsel for
the petitioner, learned counsel for the 1st respondent in W.P.No.2181 3/2000
and for the petitioner in W.P.No.6320/2001 submitted as follows:-
According to him, the 1st respondent-workman joined the Department of Atomic
Energy as Helper-A in1971 which was then a part of Central Government, though
the Department of Atomic Energy was converted into a statutory corporation,
called Nuclear Power Corporation (NPC) and came into force from 17.9.1994.
According to the learned counsel for the first respondent (petitioner in
W.P.No.6320/2001), though the bigamous marriage is admitted, as long as it has
not been enumerated as a misconduct in the Standing Orders of the
petitioner-management, the same cannot be accepted as a misconduct and so the
order of removal passed by the petitioner-management on the basis of
misconduct is invalid and cannot be accepted. For that, learned counsel has
referred to various decisions:-
(1) 1984(1)LLJ 16 Glaxo Lab.(I) Ltd. v. Labour court, Meerut
& Ors.
(2) 1984(3) SCC 316 A.L.Kalra v. Project and Equipment Corpn.
(3) 1990(II0) LLJ 96 S.Alamelu v. S.E. Elecy System
(4) 1995(I) LLJ 931 J.Dhanraj v. T.N.E.B. & ors.
(5) 11.4.1990 Order copy of T.A.No.1322/1989 (W.P.
No.14665/88) passed by the Tamil Nadu
Administrative Tribunal
(6) 1998 (Vol.93)FJR 147 T.N.E.B. v. T.N.E.Employees (Mad.)
8. Learned counsel for the 1st respondent-workman also submitted that
this fact of misconduct not being enumerated in the Standing Orders has been
elaborately discussed by the 2nd respondent-tribunal while deciding the case
in favour of the 1st respondent-workman. It is further pointed out by him
that only on the basis of the said decisions referred to above, the 2nd
respondent-tribunal has passed the impugned award setting aside the order of
removal passed by the petitionermanagement. Therefore, according to him,
adequate reasons have been given by the 2nd respondent-tribunal before setting
aside the order of removal of the 1st respondent. It is further submitted
that the petitioner-management ought not to have initiated disciplinary
proceedings at all, when the same has not been enumerated as a misconduct in
the Standing Orders. It is his further submission that on facts, the first
wife was deserted as early as 1976 and there has been no complaint from her so
as to initiate departmental proceedings as against him, as has been done in
this case. Therefore, in the absence of any complaint from any quarters,
particularly from his first wife, the action taken by the
petitioner-management is highly unwarranted and no enquiry ought to have been
conducted on that basis. According to him, the first wife of the 1st
respondent-workman has not taken steps in any of the forum available to her
against him. Therefore, when that has not been done by the affected party
concerned, it was not necessary for the petitioner-management to initiate any
such action against the 1st respondent. Though the 1st respondent-workman has
sought for the same relief of reinstatement with full backwages in W.P.No.63
20/2001, he only wants to confine himself to the limited prayer of confirming
the same award for the reason that during the pendency of the said writ
petition, the workman has left the services of the petitioner-management.
9. In reply to the submissions made by the learned counsel for the
1st respondent-workman learned counsel for the petitioner-management makes the
reply as follows:-
It is not correct on the part of the learned counsel for the 1st
respondent-workman to state that the petitioner-management did not receive any
complaint from his first wife. He has referred to the original complaint
given by the 1st wife of the 1st respondent-workman to the
petitioner-management. According to the counsel, only on the basis of the
said complaint, action was initiated by the petitionermanagement against the
workman. Therefore, it is not correct to state that the petitioner-management
has suo motu taken action against the 1st respondent. Moreover, according to
the learned counsel for the petitioner-management, though contracting a second
marriage has not been enumerated in the Standing Orders, it cannot be
construed that the same itself is not a misconduct and thereby no action need
be taken for such an offence being committed by a person or workman. He has
also brought to the notice of this court the declaration made by the 1st
respondent-workman at the time of his entering into service, namely condition
No.9, which is extracted supra. Therefore, it is his case that the rationale
behind the impugned award passed by the 2nd respondent-tribunal cannot stand
the legal scrutiny and therefore the same is liable to be set aside and no
relief could be granted to the 1st respondent-workman as given in the award.
10. Learned counsel for the 1st respondent-workman has submitted that
the impugned award passed by the 2nd respondent-tribunal is well within law
and there is no infirmity or illegality in the same warranting this court to
set aside the same.
11. I have given my careful consideration to the submissions made by
both the learned counsel and the judgments referred to by them.
12. The only point that is to be decided in these writ petitions is
whether any disciplinary action could be taken in respect of an act not
enumerated as an act of misconduct under the certified Standing Orders.
13. In Glaxo Laboratories (I)Ltd. v. Labour Court, Meerut & ors.,
19 84(I) LLJ 16 (supra) this question was considered by the Hon’ble Supreme
Court and in para 20 of the said judgment, the Hon’ble Supreme Court held as
follows:-
“20. It was next contended that while misconduct is enumerated in S. O.22,
the punishment is prescribed in S.O.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 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. S.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 maybe 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 face 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 to Mahendra Singh Dhantwal v.
Hindustan Motors Ltd. & Ors. (1976 II L.L.J 259). In that case in a second
round of litigation between the parties the Industrial Tribunal set 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 High Court which accepted the appeal observing that unless
contravention of S.33 of the Industrial Disputes Act is established, the
Industrial Tribunal would have no jurisdiction to entertain an application
under S.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 S.33A. In the
appeal by certificate granted by the High Court, workman contended that S.33
may be contravened in varieties of ways and the only question that need 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 S.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 Salem Erode
Electricity Distribution Co. Ltd. v. Salem Erode Electricity Distribution
Co. Ltd. Employees Union (1966-I L.L.J. 443), 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 the 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 (1973-II L.L.J. 403), 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. 1970(20) I.F. & L.R., 243. 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.
(1966-II L.L.J. 330), the Court held that everything which is required to be
prescribed has to be prescribed with precision and no argument can be
entertained that something not prescribed can yet be taken into account a
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 Bhushan 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.”
14. In A.L.Kalra v. Project and Equipment Corpn. 1984(3)SCC 316,
the Hon’ble Supreme Court has held that acts of misconduct must be precisely
and specifically stated in the rules or standing orders and it cannot be left
to be interpreted ex post facto by the management.
15. This Court in S.Alamelu v. S.E. Elecy System , 1990(II) LLJ 96,
held in para 6, as follows:-
“6. One of us (Nainar Sundaram, J.) in S.V.Angappan and others v. The
Tamilnadu Electricity Board, Rep., by its Secretary, Madras 2 (W.P. No.5105
of 1980), order dated 6th January, 1987),adverted to the ratio of the Supreme
Court in Glaxo Lab (I)Ltd. v. Labour Court, Meerut and others (supra) and
opined that unless the transgression of any of the Regulations is also
enumerated as misconduct in the Standing Orders, it will not attract
disciplinary action in respect of such transgression. It is true Regulation
25(2) as such sets forth an embargo on a woman employee contracting a marriage
with any person, who has a wife living, without first obtaining the permission
of the Board. It is admitted that the Regulations do not by themselves say
that a violation of Regulation 25(2) would amount to misconduct, attracting
disciplinary action. Even if such a provision has been made, the Standing
Orders under the Act having got formulated and certified and they having not
provided for such a misconduct, the Regulations would not prevail and could
not be invoked to take disciplinary action. That is the result of sanctity
annexed to the Act and the Rules, and the Standing Orders under them, and
their overriding effect on other service Rules and Regulations. The learned
single Judge, with due respect to him, in our view, has not appreciated the
implications of the Certified Standing Orders under the Act and their
overriding effect from a proper perspective. The learned single Judge took
note of the observations in Shri Rasiklal Vaghjibhai Patel v. Ahmedabad
Municipal Corporation and another (1985-I-LLJ-527) as saying that there could
be an action either under the Service Regulations or Standing Orders. With
due respect to the learned single Judge, we must point out that the said
pronouncement has not at all dealt with the question of the overriding effect
of the Certified Standing Orders under the Act over a Regulation of the
present nature. The Supreme Court in that case, was discountenancing the view
of the High Court 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.”
16. Yet another Division Bench of this court in J. Dhanaraj and T.
N.E.B. & Others held in para 9 and 10 as follows:
“Para:9. No doubt, the proposition laid down in that case appears to
support the respondents herein. But it is explained and distinguished by the
Supreme Court in Glaxo Lab (I) Ltd’s case (cited supra). The later Judgment
has taken note of the earlier Judgment. Apart from that in so far as this
Court is concerned, there is already a Division Bench on the said point and
the Division Bench has considered the Regulations and the Standing Orders
which are under our consideration in the present case. The ruling of the
Division Bench will certainly govern the present case also. As we are in
agreement with the view taken by the Division Bench, we are not in a position
to accept the contention raised by learned counsel for the respondents.
Para 10: Learned counsel for the respondents invites our attention to
the decision in M.R.Savant V. G.M. Mather & Platt (I) Ltd. & Others (1992
II LLJ 394) rendered by the Bombay High Court. After referring to the two
Judgments of the Supreme Court, the Bombay High Court in that decision held
that it would not go into the controversy and by steering clear of the
controversy, the Court assumed for the purpose of that case that the law laid
down by the Supreme Court was that the Standing Orders must specifically
enumerated any act before it can be termed as a misconduct. Thus, the Bombay
High Court proceeded on the footing that the law laid down by the later
Judgment of the Supreme Court would hold the field.”
17. In Tamil Nadu Electricity Board v. Central Organisation of Tamil
Nadu Electricity Employees and Another(1988 FJR 147) a Division Bench of this
Court held as follows:
“The apex court, in Glaxo Laboratories (I) Ltd. v. Labour Court, (19
84) 64 FJR 16, has held that a non-enumerated misconduct cannot form the
subject-matter of a disciplinary action. Following the said view, in U.P.
State Electricity Board v. Hari Shankar Jain, (1978) II LLJ 399 (sic), it has
been held that without amendment to the certified standing orders and by
including the various misconducts enumerated in the conduct regulations as
applicable to workmen covered by the standing orders would really by passing
the provisions for amendment to the certified standing orders prescribed under
section 10 of the Industrial Employment (Standing Orders) Act. In that view
of the matter, we have no hesitation to conclude that the circular now issued
is against the provisions of the Act. Therefore, we are in conformity with
the view of the learned single judge that a service regulation cannot be
replaced by a circular or a memorandum, introducing series of misconducts not
enumerated in the standing orders. So as to ensure safeguard to the workmen
they should know what are the service conditions and what constitutes
misconduct, at the time of entry into service. In the standing orders, as
many as 36 misconducts are enumerated. To read something else to that, it can
be done only by way of restoring to an amendment to the certified standing
orders, under section 10 of the Act, which gives ample opportunity for the
employees to have their say and to take the matter finality in the form of
judicial review. What is not contemplated as a service condition when entered
into service cannot be upset or re-introduced by way of memorandum, which has
no statutory value, unless it assumes a statutory significance by way of an
amendment in the manner provided by law. Therefore, the decisions, which have
no binding impact by virtue of the order of the apex court cannot be a ground
to upset the findings of the learned single judge. Since the order of the
learned single judge based on two decisions of the Division Bench of this
court in S. Alamelu v. Superintending Engineer, South Arcot Electricity
System, (1990) II LLJ 96, and Dhanaraj v. T.N.E.B., (1995) 64 FJR 16, which
decisions are based on the view of the Supreme Court in Glaxo Laboratories (I)
Ltd. v. Labour Court, (1984) I LLJ 16, we have no other option than to
confirm the order of the learned single judge, which consequently leads to the
dismissal of the appeal.
Accordingly, the writ appeal is dismissed with cost of Rs.2,000/- (
Rupees two thousand only) payable to respondent No.1.”
18. Therefore, I am bound by the judgments of the apex court and the
Division Bench of this Court which decided the issue already that no
disciplinary action could be taken against an employee for misconduct if such
acts are not enumerated in the misconduct under the standing orders.
19. In the present case it was admitted by the petitioner/ respondent
that bigamy is not enumerated as a misconduct in the standing orders holding
the field. It is admitted by him that only for the misconduct of committing
bigamy, the respondent workmen was proceeded with and was removed from service
ultimately. The Labour Court has correctly applied the principles and the law
laid down by the Apex Court and this Court and rightly held that the 1st
respondent-workman is entitled to reinstatement with conditions.
20. Therefore, I am unable to accept the contentions of the learned
counsel for the petitioner-management and the writ petition filed by the
management is liable to dismissed for devoid of merits. Accordingly,
W.P.No.21813/2000 filed by the petitioner-management is dismissed and
W.P.No.6320/2001 filed by the 1st respondent-workman is also dismissed as the
learned counsel for the petitioner workman prayed for only the confirmation of
award as given by the labour Court. However, there will be no order as to
costs.
sks/smi
To
1.The Manager
Public and Industrial Relations
Nuclear Power Corporation
Madras Atomic Power Station
Kalpakkam
Kancheepuram District
2.Central Government Industrial Tribunal
-cum-Labour Court
Sastri Bhavan, Nungambakkam
Chennai.