{"id":106038,"date":"2006-02-21T00:00:00","date_gmt":"2006-02-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-manager-vs-p-chnnnasamy-1st-on-21-february-2006"},"modified":"2015-11-25T15:13:57","modified_gmt":"2015-11-25T09:43:57","slug":"the-manager-vs-p-chnnnasamy-1st-on-21-february-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-manager-vs-p-chnnnasamy-1st-on-21-february-2006","title":{"rendered":"The Manager vs P.Chnnnasamy .. 1St on 21 February, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
The Manager vs P.Chnnnasamy .. 1St on 21 February, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 21\/02\/2006\n\nCoram\n\nThe Hon'ble Mr.JUSTICE S.RAJESWARAN\n\nW.P.No.21813 of 2000\nand W.P.No. 6320 of 2001\n\nThe Manager\nPublic and Industrial Relations\nNuclear Power Corporation\nMadras Atomic Power Station\nKalpakkam\nKancheepuram District                   .. Petitioner,\nW.P.21813\/00\n\n-Vs-\n\n1.P.Chnnnasamy                         .. 1st respondent,<\/pre>\n
                                           W.P.No.21813\/00 &
\n                                           Petitioner,W.P.6320\/01<\/p>\n
  The Manager
\n  Personnel & Industrial Relations
\n  Nuclear Power Corporation
\n  Kalpakkam                             .. 1st respondent,W.P.6320\/01<\/p>\n
2.Central Government Industrial Tribunal\n<\/p>\n
  -cum-Labour Court
\n  City Civil Court Buildings
\n  High Court
\n  Madras.600 104
\n                                                .. 2nd respondent, W.P.6320\/01
\n  Central Government Industrial Tribunal\n<\/p>\n
  -cum-Labour Court
\n  Sastri Bhavan, Nungambakkam
\n  Chennai.                           .. 2nd respondent,W.P.6320\/01<\/p>\n
        Writ Petition in W.P.No.21813\/2000 filed  under  Article  226  of  the
\nConstitution  of India seeking to issue a writ of certiorari as stated therein
\nand W.P.No.6320\/2001 filed under Article 226 of the Constitution of India  for
\nthe relief of writ of certiorarified mandamus as stated therein.\n<\/p>\n
For Petitioner :  Mr.N.Jothi, assisted by
\n                Mr.L.P.  Shanmugasundaram<\/p>\n
For Respondents :  Mr.  M.  Gnanasekar<\/p>\n
:COMMON ORDER<\/p>\n
        The  management  has  filed the writ petition In W.P.No.21813\/2000 for
\nthe relief of writ of certiorari to quash the award passed  in  I.D.No.1\/2000,
\ndated 22.11.2000 by the 2nd respondent.\n<\/p>\n
        2.  Writ Petition in W.P.No.6320\/2001 has been filed P.Chinnasamy, the
\nworkman  for  the  relief  of certiorarified mandamus, to call for the records
\nrelating to I.D.No.1\/2000, dated 22.11.2000 on the file of the 2nd respondent,
\nquash  the  same  insofar  as  denying  the  halfbackwages  is  concerned  and
\nconsequently   seeking  for  reinstatement  with  full  back-wages  and  other
\nbenefits.\n<\/p>\n
        3.  Since the issue involved in both the writ petitions relate to  the
\naward  passed in I.D.No.1\/2000, dated 22.11.2000 passed by the 2nd respondent,
\nboth the writ petitions are taken together and common order  is  being  passed
\nwith the consent of the learned counsel for both sides.\n<\/p>\n
        4.   W.P.No.21813\/2000:- This writ petition has been filed against the
\naward passed in I.D.No.1\/2000, wherein the 2nd respondent has passed an  order
\nof reinstatement of the first respondent\/workman by setting aside the order of
\nremoval from service passed by the disciplinary authority, as confirmed by the
\nappellate  authority and further directions to the management to reinstate the
\n1st respondent with some  other  benefits.    However  it  is  stated  by  the
\npetitioner-management  that  no  conditions  have  been  stipulated by the 2nd
\nrespondent-tribunal that are to be followed.  It is further  stated  that  the
\n1st  respondentworkman was appointed in the Madras Atomic Power Project (as it
\nwas called by then) during March 1971.  At the time  of  appointment,  he  has
\nmade a declaration, in condition No.9 which reads thus:-\n<\/p>\n
“No person who has more than one wife living shall be eligible for appointment
\nto Government Services.  A declaration to the effect that you are unmarried or
\nhave  only  one wife living as the case maybe will have to be signed by you at
\nthe time of appointment (form enclosed).  In the event  of  declaration  being
\nfound  to  be  incorrect after your appointment in this Department you will be
\nliable to be dismissed form service.”\n<\/p>\n
Accepting this declaration, the 1st respondent-workman  has  also  signed  the
\norder on 3.3.1971 and entered into service.  As per this if any declaration is
\nfound to  be  incorrect,  he could be removed from service.  It is also stated
\nthat at the time of joining service in the  family  benefit  details,  he  has
\ndeclared  that  he  got married to one Kalyani and also indicated the names of
\nP.C.lakshmi as his daughter and P.C.Devan as his son born to him on  10.5.1973
\nand 15.7.1976  respectively.    His  entire  family availed medical facilities
\nprovided by the management for all the  family  members.    According  to  the
\npetitioner,  he  suddenly  introduced  another  woman  by name Mrs.S.Muthu and
\nfurther introduced the names of C.Premavathy, C.Thilakavathi, as daughters and
\nC.Magesh as his son.  These two daughters and a  son  were  born  through  the
\nsecond wife  S.Muthu.   Thus the 1st respondent-workman had performed bigamous
\nmarriage while his first wife Mrs.Kalyani was alive.   On  the  basis  of  the
\ninformation  that  the  1st respondent has contracted the second marriage when
\nthe first wife was alive and  when  the  said  marriage  was  subsisting,  the
\npetitioner issued  a  charge sheet to the 1 st respondent.  A domestic enquiry
\nwas conducted by the enquiry officer by absorbing all  the  procedures.    The
\nfindings of  the enquiry officer stood against the 1st respondent.  On perusal
\nof the record it was further found that the 1st respondent nominated his first
\nwife Kalyani as primary nominee, and for the purpose of L.T.C.  and travelling
\nallowance also, he had declared Mrs.S.Kalyani as his wife, P.C.Lakshmi as  his
\ndaughter and  Master  Devan  as  his  son.    He had further declared that the
\ndaughter and son are his legitimate children born to his legally married  wife
\nKalyani.   While  so,  the  1st  respondent  had submitted a totally different
\nnomination for Death-cum-Retirement Gratuity declaring one  Mrs.Muthu  as  his
\nwife   the   primary  nominee  and  introduced  P.C.Lashmi  and  P.C.Devan  as
\nalternative nominees.  It is also stated that the 1st respondent had  admitted
\nthe 2nd marriage and the birth of the children through her.  Therefore, on the
\nbasis  of  the  materials and records available, the enquiry officer found the
\n1st respondent-workman  was  guilty  of  all  charges.     Consequently,   the
\ndisciplinary  authority passed an order on 10.10.1998, after observing all the
\nformalities and fully adopting the principles of natural justice, removing him
\nfrom service.  An appeal was filed by the  1st  respondent  to  the  appellate
\nauthority which  also  confirmed  the  order  of  removal.   Thereafter, it is
\nsubmitted that he raised an industrial dispute in I.D.  No.1\/2000  before  the
\n2nd  respondent,  who passed an award on 22.11.2000, which is impugned in this
\nwrit petition in W.P.No.21813\/2000.\n<\/p>\n
        5.   It  is  seen  from  the  impugned  award  passed   by   the   2nd
\nrespondenttribunal  that the enquiry was very fair and proper and there was no
\ninfirmity or any violation in the manner in  which  the  same  was  conducted.
\nThereafter,  the 2nd respondent ultimately passed the impugned award directing
\nreinstatement of the 1st respondent in service with some conditions imposed by
\nthe  petitioner-management  on  only  one  ground,  namely,   the   Industrial
\nEmployment  (Standing  Orders) Act 1946 ( hereinafter called as the Act) which
\ncontains the Rules framed by the Central Government which is  also  called  as
\nthe  Industrial  Employment ( Standing Orders Central Rules 1946, (hereinafter
\ncalled as the Rules)  does  not  provide  the  bigamous  marriage  or  getting
\nchildren through  such  a  marriage  as  a  misconduct.    In  short,  the 2nd
\nrespondent-tribunal has held that the act of  marrying  and  getting  children
\nthrough  bigamous  marriage  during  the  lifetime  of the first wife will not
\namount to any act or omissions so as to treat the  same  as  a  misconduct  in
\nterms of the standing orders\/rules.\n<\/p>\n
        6.   Learned  counsel  for  the  petitioner-management  submitted that
\nthough the Standing Orders as stated by the second  respondent-tribunal  would
\nnot  specify  the  bigamous marriage as a misconduct, it is a misconduct and a
\nserious offence in general law.  The provisions of  the  Hindu  Marriage  Act,
\n1955 stipulate  that  bigamous  marriage  is  prohibited.    Moreover, he also
\nreferred to the Criminal Procedure Code, Chapter XIV relating the  prosecution
\nfor offences  against  marriage  under  Section 198.  Learned counsel has also
\nreferred to the charge memo dated 1 8.6.1996, which reads thus:-\n<\/p>\n
“ARTICLE I<\/p>\n
That the said Shri P.Chinnaswamy, while functioning as Tradesman  had  married
\nanother woman viz., Smt.  Muthu while his first wife Smt.  Kalyani was living.
\nAs  per  the details of Master Medical Card, two children were born to him out
\nof his first wife, the  first  child  in  the  year  1973  and  the  other  on
\n15.7.1976.   As per the details given by him later on three children were born
\nto him through Smt.  Muthu, his 2nd wife with their dates of birth as 29.5.74,
\n3.8.76 and 20.12.78.\n<\/p>\n
        That the said Shri P.Chinnaswamy by marrying another woman  while  his
\nfirst  is  alive  has  acted  in  a  manner  i.e., unbecoming of a Corporation
\nemployee.\n<\/p>\n
ARTICLE II<\/p>\n
        That the said Shri P.Chinnaswamy while  functioning  as  Tradesman  in
\nMAPS  suppressed  the facts of his 2nd marriage with another woman viz., Muthu
\nand begetting following children while his first wife was also living.\n<\/p>\n
        1.C.Premavathy Daughter\n<\/p>\n
        2.  C.Thilagavathy -do-\n<\/p>\n
        3.  C.Makesh            Son
\n        Prior to introduction of CHS Scheme in DAE hospital i.e.,  on  16.5.85
\nhe applied for availing medical facilities for these children whose names were
\nincluded  in  the Master card by deliberately excluding the name of his second
\nwife Smt.  Muthu.  Later on when CHSS was introduced in the DAE  hospital,  he
\napplied for inclusion of the following persons as his dependants who are being
\nthe first wife and children born out of her:-\n<\/p>\n
1.P.Chinnaswamy Self    15.6.45\n2.Smt.Kalyani   wife 43 years\n3.P.C.Lakshmi   daughter 10.5.73\n4.P.C.Devan     son     15.7.76\n\n<\/pre>\n
        That  the  said Shri P.Chinnaswamy has by suppressing the facts of his
\n2nd marriage with another woman and begetting children has acted in  a  manner
\nthat is unbecoming of a Corporation employee.\n<\/p>\n
ARTICLE III:\n<\/p>\n
        That  the  said  Shri  P.Chinnaswamy while functioning as Tradesman in
\nMAPS had submitted a nomination dated 23.7.73 declaring Smt.Kalyani,  his  1st
\nwife as primary nominee for the purpose of Provident Fund and had included her
\nas a  family  member for the purpose of LTC\/TA.  For availing medical facility
\nat the first instance he declared Smt.  Kalyani as his wife and P.C.Lakshmi as
\nhis daughter.  Subsequently  for  availing  medical  facilities,  he  included
\nMs.Thilagavathy,  Ms.Premavathy  and  Master  Makesh  by declaring them as his
\nlegitimate children although they were born through his second wife.    During
\nJuly  1987  he submitted a nomination dated 14.7.87 for Death -cum- Retirement
\nGratuity declaring Smt.Muthu as  his  wife  and  as  primary  nominee  and  C.
\nPremavathy, C.Thilagavathy,  C.Makesh as alternative nominees.  Later, when he
\nwas absorbed in NPCIL, he gave nomination  in  favour  of  his  2nd  wife  and
\nchildren  born out of 2nd wife leaving behind the first wife and children born
\nout of 1st wife.”\n<\/p>\n
It is further submitted that in the letter dated 26.3.1997 written by the  1st
\nrespondent-workman  to  the  Department, wherein he has categorically admitted
\nthe offence committed by him and pleads for  forgiveness  based  on  his  past
\nexperience in  the  petitioner-department.  Learned counsel for the petitioner
\nhas also referred to the claim statement made in  I.D.No.1\/2000,  wherein  the
\n1st  respondent  has  stated  that he has not committed any serious misconduct
\nlike misappropriation or corruption or embezzlement but suo  motu  action  had
\nbeen taken  against  the  him  in  this  case.    The  learned counsel for the
\npetitioner has stated that this contention of the 1st respondent-workman  that
\naction  has  been  taken against him as per the sweet will and pleasure of the
\npetitioner-management without any material cannot be considered at all for  he
\nhas  violated  the  rules of the general law by contracting a second marriage.
\nTherefore, according to the learned counsel for the petitioner, on  the  basis
\nof  the Standing Orders and the general law, action has been taken against the
\n1st respondent and there is no error committed by the  disciplinary  authority
\nin passing  the  order  of  removal against the 1st respondent.  It is further
\nstated by the learned counsel that on the basis of the admissions made by  the
\n1st   respondent   and   the   request   for   lesser   punishment,   the  2nd
\nrespondent-tribunal has condoned the unbecoming act of the 1st respondent  and
\npassed an  order  in  his favour.  However, learned counsel for the petitioner
\nreiterates that while accepting that the enquiry was fair and also that  there
\nwas  clear  admission  on  the  part  of  the 1st respondent in respect of 2nd
\nmarriage as contracted by him, the impugned award has been passed mechanically
\non the ground that there  was  no  clear  provision  in  the  Standing  Orders
\ntreating the  bigamous  marriage as misconduct.  On that basis, it is his case
\nthat the same should not be a ground for the 2nd respondent-tribunal  to  have
\nthe  order  of  removal of the 1st respondent-workman set aside and that it is
\nexcessive and contrary to the gravity of the misconduct.   Therefore,  learned
\ncounsel  assails  the  impugned  award  of  the 2nd respondent-tribunal on the
\nground that it has not applied its mind and the provisions of the general law.
\nLearned counsel further added that it would only put a premium on the offences
\nof this nature to be committed by persons.  He has also referred to  the  fact
\nthat  a  person  who commits murder should not rely upon the provisions of the
\nStanding Orders to say that it is not one of the misconduct as  enumerated  in
\nthe  Standing  Orders  thereby,  he  could  be  made  to say that he should be
\nreinstated in service even after committing murder.  Learned counsel has  also
\nreferred  to  the  provisions of the Constitution of India, Part IV-A, Article
\n51-A wherein the fundamental duties have  been  enumerated.    It  is  further
\nstated  by  the learned counsel that the Standing Orders cannot be taken as an
\nexhaustive one but it is only an illustrating provision  wherein  it  is  only
\nused as  a  model conduct for the workers’ behaviour in general.  Whereas that
\ncannot be taken as a complete and exhaustive code for all  the  behaviour  and
\nconduct of   the   workers.      It  is  also  stated  by  him  that  the  2nd
\nrespondent-tribunal ought not to have gone beyond its jurisdiction and decided
\nthe quantum of punishment imposed by the petitioner-management.  Moreover, the
\nreasons  for   interfering   with   the   detailed   order   passed   by   the
\npetitioner-management  has  not  been  given  by the 2 nd respondent-tribunal.
\nTherefore, it is his contention that the impugned award  challenged  in  these
\nwrit  petitions  should  be  set  aside and the order of removal passed by the
\npetitioner-management should be upheld.\n<\/p>\n
        7.  In reply to the submissions put forth by the learned  counsel  for
\nthe  petitioner,  learned counsel for the 1st respondent in W.P.No.2181 3\/2000
\nand for the petitioner in W.P.No.6320\/2001 submitted as follows:-\n<\/p>\n
According to him, the 1st respondent-workman joined the Department  of  Atomic
\nEnergy  as Helper-A in1971 which was then a part of Central Government, though
\nthe Department of Atomic Energy was converted into  a  statutory  corporation,
\ncalled  Nuclear  Power  Corporation  (NPC) and came into force from 17.9.1994.
\nAccording to the learned counsel  for  the  first  respondent  (petitioner  in
\nW.P.No.6320\/2001), though the bigamous marriage is admitted, as long as it has
\nnot   been   enumerated  as  a  misconduct  in  the  Standing  Orders  of  the
\npetitioner-management, the same cannot be accepted as a misconduct and so  the
\norder  of  removal  passed  by  the  petitioner-management  on  the  basis  of
\nmisconduct is invalid and cannot be accepted.  For that, learned  counsel  has
\nreferred to various decisions:-\n<\/p>\n
(1) 1984(1)LLJ 16 Glaxo Lab.(I) Ltd.  v.  Labour court, Meerut
\n& Ors.\n<\/p>\n
(2) 1984(3) SCC 316 A.L.Kalra v.  Project and Equipment Corpn.<\/a>
\n(3) 1990(II0) LLJ 96 S.Alamelu v.  S.E.  Elecy System<\/a>
\n(4) 1995(I) LLJ 931 J.Dhanraj v.  T.N.E.B.  & ors.\n<\/p>\n
(5) 11.4.1990 Order copy of T.A.No.1322\/1989 (W.P.\n<\/p>\n
                No.14665\/88) passed by the Tamil Nadu
\n                        Administrative Tribunal<\/p>\n
(6) 1998 (Vol.93)FJR 147 T.N.E.B.  v.  T.N.E.Employees (Mad.)<\/p>\n
        8.  Learned counsel for the 1st respondent-workman also submitted that
\nthis  fact  of misconduct not being enumerated in the Standing Orders has been
\nelaborately discussed by the 2nd respondent-tribunal while deciding  the  case
\nin favour  of  the  1st  respondent-workman.  It is further pointed out by him
\nthat only on the basis of the  said  decisions  referred  to  above,  the  2nd
\nrespondent-tribunal  has  passed the impugned award setting aside the order of
\nremoval passed by the petitionermanagement.    Therefore,  according  to  him,
\nadequate reasons have been given by the 2nd respondent-tribunal before setting
\naside the  order  of  removal  of the 1st respondent.  It is further submitted
\nthat the  petitioner-management  ought  not  to  have  initiated  disciplinary
\nproceedings  at  all, when the same has not been enumerated as a misconduct in
\nthe Standing Orders.  It is his further submission that on  facts,  the  first
\nwife was deserted as early as 1976 and there has been no complaint from her so
\nas  to  initiate  departmental proceedings as against him, as has been done in
\nthis case.  Therefore, in the absence of  any  complaint  from  any  quarters,
\nparticularly    from    his    first   wife,   the   action   taken   by   the
\npetitioner-management is highly unwarranted and no enquiry ought to have  been
\nconducted on  that  basis.    According  to  him,  the  first  wife of the 1st
\nrespondent-workman has not taken steps in any of the forum  available  to  her
\nagainst him.    Therefore,  when  that has not been done by the affected party
\nconcerned, it was not necessary for the petitioner-management to initiate  any
\nsuch action against the 1st respondent.  Though the 1st respondent-workman has
\nsought  for  the same relief of reinstatement with full backwages in W.P.No.63
\n20\/2001, he only wants to confine himself to the limited prayer of  confirming
\nthe  same  award  for  the  reason  that  during the pendency of the said writ
\npetition, the workman has left the services of the petitioner-management.\n<\/p>\n
        9.  In reply to the submissions made by the learned  counsel  for  the
\n1st respondent-workman learned counsel for the petitioner-management makes the
\nreply as follows:-\n<\/p>\n
It   is  not  correct  on  the  part  of  the  learned  counsel  for  the  1st
\nrespondent-workman to state that the petitioner-management did not receive any
\ncomplaint from his first wife.  He has  referred  to  the  original  complaint
\ngiven   by   the   1st   wife   of   the   1st   respondent-workman   to   the
\npetitioner-management.  According to the counsel, only on  the  basis  of  the
\nsaid  complaint,  action was initiated by the petitionermanagement against the
\nworkman.  Therefore, it is not correct to state that the petitioner-management
\nhas suo motu taken action against the 1st respondent.  Moreover, according  to
\nthe learned counsel for the petitioner-management, though contracting a second
\nmarriage  has  not  been  enumerated  in  the  Standing  Orders,  it cannot be
\nconstrued that the same itself is not a misconduct and thereby no action  need
\nbe taken  for  such an offence being committed by a person or workman.  He has
\nalso brought to the notice of this court  the  declaration  made  by  the  1st
\nrespondent-workman  at the time of his entering into service, namely condition
\nNo.9, which is extracted supra.  Therefore, it is his case that the  rationale
\nbehind  the  impugned award passed by the 2nd respondent-tribunal cannot stand
\nthe legal scrutiny and therefore the same is liable to be  set  aside  and  no
\nrelief could be granted to the 1st respondent-workman as given in the award.\n<\/p>\n
        10.  Learned counsel for the 1st respondent-workman has submitted that
\nthe  impugned  award  passed by the 2nd respondent-tribunal is well within law
\nand there is no infirmity or illegality in the same warranting this  court  to
\nset aside the same.\n<\/p>\n
        11.   I have given my careful consideration to the submissions made by
\nboth the learned counsel and the judgments referred to by them.\n<\/p>\n
        12.  The only point that is to be decided in these writ  petitions  is
\nwhether  any  disciplinary  action  could  be  taken  in respect of an act not
\nenumerated as an act of misconduct under the certified Standing Orders.\n<\/p>\n
        13.  In Glaxo Laboratories (I)Ltd.  v.  Labour Court, Meerut  &  ors.<\/a>,
\n19  84(I)  LLJ  16 (supra) this question was considered by the Hon’ble Supreme
\nCourt and in para 20 of the said judgment, the Hon’ble Supreme Court  held  as
\nfollows:-\n<\/p>\n
“20.  It  was  next contended that while misconduct is enumerated in S.  O.22,
\nthe punishment is prescribed in S.O.23, and the expression  ‘  misconduct’  in
\nS.O.23  would comprehend any misconduct irrespective of the fact whether it is
\nenumerated in S.O.22 or not.  The preamble of S.  O.23 reads as under:\n<\/p>\n
        “23(a) Any workman who is adjudged by the manager  on  examination  of
\nthe workman, if present, and of the facts to be guilty of misconduct is liable
\nto be …”\n<\/p>\n
The  submission  is  that  the  expression  ‘misconduct’  under  S.O.23 is not
\nqualified as the one set out  in  S.O.22  and  therefore,  any  other  act  of
\nomission  or  commission  which would per se be misconduct would be punishable
\nunder S.O.23 irrespective of the fact whether  it  finds  its  enumeration  in
\nS.O.22.   The  Act  makes  it obligatory to frame standing orders and get them
\ncertified.  S.3(2) requires the employers in an industrial establishment while
\npreparing draft standing orders to make provision  in  such  draft  for  every
\nmatter  set  out  in  the  Schedule  which  maybe applicable to the industrial
\nestablishment, and where model standing orders have been prescribed, shall be,
\nso far as is practicable, in conformity with  such  model.    Item  9  of  the
\nSchedule  provides  ‘suspension  or  dismissal  for  misconduct,  and  acts or
\nomissions which constitute misconduct’.  It is therefore, obligatory upon  the
\nemployer to draw up with precision those acts of omission and commission which
\nin his  industrial  establishment  would  constitute  misconduct.   Penalty is
\nimposed for misconduct.  The workmen must therefore, know in advance which act
\nor omission would constitute misconduct as to be visited with  penalty.    The
\nstatutory  obligation is to prescribe with precision in the standing order all
\nthose acts of omission or commission which would constitute  misconduct.    In
\nthe  face  of  the  statutory provision it would be difficult to entertain the
\nsubmission that some other act or omission which may be misconduct though  not
\nprovided for in the standing order would be punishable under standing order 23
\n.  Upon  a  harmonious  construction,  the expression ‘misconduct’ in S.  O.23
\nmust refer to those acts of omission or commission which constitute misconduct
\nas enumerated  in  standing  order  22  and  none  else.    However,  in  this
\nconnection,   Mr.Shanti  Bhushan  drew  our  to  Mahendra  Singh  Dhantwal  v.
\nHindustan Motors Ltd.  & Ors.<\/a>  (1976 II L.L.J 259).  In that case in a  second
\nround  of litigation between the parties the Industrial Tribunal set aside the
\norder of dismissal of the workmen and ordered  reinstatement  with  full  back
\nwages.   In  a  writ  petition  filed  by  the  Company  under  Art.226 of the
\nConstitution, a learned Single Judge of the High Court declined  to  interfere
\nwith  the  award  holding  that  ‘the reason might have been the old reason of
\ndismissal’ and that the “circumstances relied on by  the  Tribunal  cannot  be
\ncharacterised as unreasonable.” The Company carried the matter to the Division
\nBench  of  the  High  Court  which  accepted  the appeal observing that unless
\ncontravention of S.33 of the  Industrial  Disputes  Act  is  established,  the
\nIndustrial  Tribunal  would  have  no jurisdiction to entertain an application
\nunder S.33A.  In terms it was held that unless it is  established  that  there
\nhas been discharge for misconduct, the Industrial Tribunal had no jurisdiction
\nto set  aside  the order of termination in an application under S.33A.  In the
\nappeal by certificate granted by the High Court, workman contended  that  S.33
\nmay  be contravened in varieties of ways and the only question that need to be
\nexamined is whether there was a contravention by the employer in that  it  did
\nnot  make  any  application  to  the Tribunal for the approval of the order of
\ntermination of service of the workman.  It  is  in  this  context  that  while
\nallowing the appeal of the workman this Court observed as under:\n<\/p>\n
        “Standing   orders  of  a  company  only  describe  certain  cases  of
\nmisconduct and the same cannot be exhaustive of all the species of  misconduct
\nwhich a  workman  may commit.  Even though a given conduct may not come within
\nthe specific terms of misconduct described in  the  standing  orders,  it  may
\nstill  be  a  misconduct,  in the special facts of a case, which it may not be
\npossible to condone and for which the employer may  take  appropriate  action.
\nOrdinarily, the standing orders may limit the concept but not invariably so.”\n<\/p>\n
Relying  on these observations, Mr.Shanti Bhushan urged that this Court has in
\nterms held that there can be some  other  misconduct  not  enumerated  in  the
\nstanding order  and  for which the employer may take appropriate action.  This
\nobservation cannot be viewed divorced from the facts of the case.  What stared
\nin the face of the court in that case was  that  the  employer  had  raised  a
\ntechnical  objection  ignoring  the  past  history  of  litigation between the
\nparties that application under S.33A was not maintainable.    It  is  in  this
\ncontext  that this Court observed that the previous action might have been the
\noutcome of some misconduct not enumerated in the  standing  order.    But  the
\nextracted  observation  cannot  be  elevated to a proposition of law that some
\nmisconduct neither defined nor enumerated and which may  be  believed  by  the
\nemployer to be misconduct ex post facto would expose the workman to a penalty.
\nThe   law  will  have  to  move  two  centuries  backward  to  accept  such  a
\nconstruction.  But it is not necessary to go so far  because  in  Salem  Erode
\nElectricity Distribution Co.   Ltd.   v.  Salem Erode Electricity Distribution
\nCo.  Ltd.  Employees Union<\/a> (1966-I L.L.J.  443), this Court in terms held that
\nthe object underlying the  Act  was  to  introduce  uniformity  of  terms  and
\nconditions  of employment in respect of workmen belonging to the same category
\nand discharging the same or similar work under  an  industrial  establishment,
\nand  that  these  terms  and  conditions  of  industrial  employment should be
\nwell-established and should be known to the employees before they  accept  the
\nemployment.   If  such  is the object, no vague undefined notion about any act
\nmay be innocuous which from the employer’s point of view may be misconduct but
\nnot provided for in the standing order for which a  penalty  can  be  imposed,
\ncannot be  incorporated  in the standing orders.  From certainty of conditions
\nof employment, we would have to return to the days  of  hire  and  fire  which
\nreverse movement  is  hardly justified.  In this connection, we may also refer
\nto Western India Match Company Ltd.  v.  Workmen<\/a> (1973-II  L.L.J.    403),  in
\nwhich  this  Court  held  that  any  condition of service if inconsistent with
\ncertified standing orders, the  same  would  not  prevail  and  the  certified
\nstanding orders  would  have  precedence  over  all such agreements.  There is
\nreally one interesting observation in this which deserves noticing.  Says  the
\nCourt:\n<\/p>\n
        “In  the  sunny  days  of  the  market economy theory people sincerely
\nbelieved that the economic law of demand and supply in the labour market would
\nsettle a mutually beneficial bargain between the  employer  and  the  workman.
\nSuch  a  bargain,  they  took  it  for  granted,  would  secure fair terms and
\nconditions of employment to the workman.  This law they venerated  as  natural
\nlaw.  They had an abiding faith in the verity of this law.  But the experience
\nof the working of this law over a long period has belied their faith.”\n<\/p>\n
Lastly we may  refer  to  Workmen of Lakheri Cement Works Ltd.  v.  Associated
\nCement Companies Ltd.  1970(20) I.F.  & L.R., 243.  This  Court  repelled  the
\ncontention  that the Act must prescribe the minimum which has to be prescribed
\nin an  industrial  establishment,  but  it  does  not  exclude  the  extension
\notherwise.   Relying  upon the earlier decision of this Court in Rohtak Hissar
\nDistrict Electricity Supply Co.Ltd.   v.    State  of  Uttar  Pradesh  &  Ors.<\/a>
\n(1966-II L.L.J.   330), the Court held that everything which is required to be
\nprescribed has to  be  prescribed  with  precision  and  no  argument  can  be
\nentertained  that  something  not  prescribed  can yet be taken into account a
\nvarying what is prescribed.  In short it cannot be left  to  the  vagaries  of
\nmanagement  to  say  ex  post  facto  that some acts of omission or commission
\nnowhere found to be enumerated in the relevant standing order is none the less
\na misconduct not strictly falling within  the  enumerated  misconduct  in  the
\nrelevant  standing  order  but  yet a misconduct for the purpose of imposing a
\npenalty.  Accordingly, the contention of Mr.Shanti Bhushan that some other act
\nof misconduct which would per se be an act of misconduct though not enumerated
\nin S.O.22 can be punished under S.O.23 must be rejected.”\n<\/p>\n
        14.  In A.L.Kalra v.  Project and Equipment Corpn.<\/a>    1984(3)SCC  316,
\nthe  Hon’ble  Supreme Court has held that acts of misconduct must be precisely
\nand specifically stated in the rules or standing orders and it cannot be  left
\nto be interpreted ex post facto by the management.\n<\/p>\n
        15.  This Court in S.Alamelu v.  S.E.  Elecy System<\/a> , 1990(II) LLJ 96,
\nheld in para 6, as follows:-\n<\/p>\n
“6.  One  of  us  (Nainar  Sundaram,  J.)  in  S.V.Angappan and others v.  The
\nTamilnadu Electricity Board, Rep.,<\/a> by its Secretary, Madras 2 (W.P.    No.5105
\nof  1980), order dated 6th January, 1987),adverted to the ratio of the Supreme
\nCourt in Glaxo Lab (I)Ltd.  v.  Labour Court, Meerut and  others<\/a>  (supra)  and
\nopined  that  unless  the  transgression  of  any  of  the Regulations is also
\nenumerated  as  misconduct  in  the  Standing  Orders,  it  will  not  attract
\ndisciplinary action  in  respect of such transgression.  It is true Regulation
\n25(2) as such sets forth an embargo on a woman employee contracting a marriage
\nwith any person, who has a wife living, without first obtaining the permission
\nof the Board.  It is admitted that the Regulations do not  by  themselves  say
\nthat  a  violation  of Regulation 25(2) would amount to misconduct, attracting
\ndisciplinary action.  Even if such a provision has  been  made,  the  Standing
\nOrders  under  the Act having got formulated and certified and they having not
\nprovided for such a misconduct, the Regulations would not  prevail  and  could
\nnot be  invoked  to  take disciplinary action.  That is the result of sanctity
\nannexed to the Act and the Rules, and the  Standing  Orders  under  them,  and
\ntheir overriding  effect  on other service Rules and Regulations.  The learned
\nsingle Judge, with due respect to him, in our view, has  not  appreciated  the
\nimplications  of  the  Certified  Standing  Orders  under  the  Act  and their
\noverriding effect from a proper perspective.  The learned  single  Judge  took
\nnote of  the  observations  in  Shri  Rasiklal  Vaghjibhai Patel v.  Ahmedabad
\nMunicipal Corporation and<\/a> another (1985-I-LLJ-527) as saying that there  could
\nbe an  action  either  under the Service Regulations or Standing Orders.  With
\ndue respect to the learned single Judge, we  must  point  out  that  the  said
\npronouncement  has not at all dealt with the question of the overriding effect
\nof the Certified Standing Orders under  the  Act  over  a  Regulation  of  the
\npresent nature.  The Supreme Court in that case, was discountenancing the view
\nof  the  High  Court  that  even  if  the  allegation  of  misconduct does not
\nconstitute  misconduct  amongst  those  enumerated  in  the  relevant  service
\nregulations,  yet  the employer can attribute what would otherwise per se be a
\nmisconduct though not enumerated and punish him for the same.”\n<\/p>\n
        16.  Yet another Division Bench of this court in J.  Dhanaraj  and  T.
\nN.E.B.  & Others held in para 9 and 10 as follows:\n<\/p>\n
“Para:9.        No  doubt,  the  proposition laid down in that case appears to
\nsupport the respondents herein.  But it is explained and distinguished by  the
\nSupreme Court  in  Glaxo Lab (I) Ltd’s case (cited supra).  The later Judgment
\nhas taken note of the earlier Judgment.  Apart from that in  so  far  as  this
\nCourt  is  concerned,  there is already a Division Bench on the said point and
\nthe Division Bench has considered the  Regulations  and  the  Standing  Orders
\nwhich are  under  our  consideration  in  the present case.  The ruling of the
\nDivision Bench will certainly govern the present case also.    As  we  are  in
\nagreement  with the view taken by the Division Bench, we are not in a position
\nto accept the contention raised by learned counsel for the respondents.\n<\/p>\n
Para 10:        Learned counsel for the respondents invites our  attention  to
\nthe decision in M.R.Savant  V.   G.M.  Mather & Platt (I) Ltd.  & Others (1992
\nII LLJ 394) rendered by the Bombay High Court.  After  referring  to  the  two
\nJudgments  of  the  Supreme Court, the Bombay High Court in that decision held
\nthat it would not go into  the  controversy  and  by  steering  clear  of  the
\ncontroversy,  the Court assumed for the purpose of that case that the law laid
\ndown by the Supreme Court was  that  the  Standing  Orders  must  specifically
\nenumerated any  act before it can be termed as a misconduct.  Thus, the Bombay
\nHigh Court proceeded on the footing that  the  law  laid  down  by  the  later
\nJudgment of the Supreme Court would hold the field.”\n<\/p>\n
        17.  In Tamil Nadu Electricity Board v.  Central Organisation of Tamil
\nNadu  Electricity Employees and Another<\/a>(1988 FJR 147) a Division Bench of this
\nCourt held as follows:\n<\/p>\n
        “The apex court, in Glaxo Laboratories (I) Ltd.  v.  Labour Court,<\/a> (19\n<\/p>\n
84) 64 FJR 16, has held that  a  non-enumerated  misconduct  cannot  form  the
\nsubject-matter of  a  disciplinary  action.   Following the said view, in U.P.
\nState Electricity Board v.  Hari Shankar Jain,<\/a> (1978) II LLJ 399 (sic), it has
\nbeen held that without amendment to  the  certified  standing  orders  and  by
\nincluding  the  various  misconducts  enumerated in the conduct regulations as
\napplicable to workmen covered by the standing orders would really  by  passing
\nthe provisions for amendment to the certified standing orders prescribed under
\nsection 10  of  the Industrial Employment (Standing Orders) Act.  In that view
\nof the matter, we have no hesitation to conclude that the circular now  issued
\nis against  the  provisions  of the Act.  Therefore, we are in conformity with
\nthe view of the learned single judge  that  a  service  regulation  cannot  be
\nreplaced  by a circular or a memorandum, introducing series of misconducts not
\nenumerated in the standing orders.  So as to ensure safeguard to  the  workmen
\nthey  should  know  what  are  the  service  conditions  and  what constitutes
\nmisconduct, at the time of entry into service.  In  the  standing  orders,  as
\nmany as 36 misconducts are enumerated.  To read something else to that, it can
\nbe  done  only  by  way of restoring to an amendment to the certified standing
\norders, under section 10 of the Act, which gives  ample  opportunity  for  the
\nemployees  to  have  their  say and to take the matter finality in the form of
\njudicial review.  What is not contemplated as a service condition when entered
\ninto service cannot be upset or re-introduced by way of memorandum, which  has
\nno  statutory  value,  unless it assumes a statutory significance by way of an
\namendment in the manner provided by law.  Therefore, the decisions, which have
\nno binding impact by virtue of the order of the apex court cannot be a  ground
\nto upset  the  findings  of  the learned single judge.  Since the order of the
\nlearned single judge based on two decisions of  the  Division  Bench  of  this
\ncourt in S.    Alamelu  v.    Superintending Engineer, South Arcot Electricity
\nSystem,<\/a> (1990) II LLJ 96, and Dhanaraj v.  T.N.E.B., (1995) 64 FJR  16,  which
\ndecisions are based on the view of the Supreme Court in Glaxo Laboratories (I)
\nLtd.  v.    Labour  Court,<\/a>  (1984)  I  LLJ 16, we have no other option than to
\nconfirm the order of the learned single judge, which consequently leads to the
\ndismissal of the appeal.\n<\/p>\n
        Accordingly, the writ appeal is dismissed with cost  of  Rs.2,000\/-  (
\nRupees two thousand only) payable to respondent No.1.”\n<\/p>\n
        18.   Therefore, I am bound by the judgments of the apex court and the
\nDivision Bench  of  this  Court  which  decided  the  issue  already  that  no
\ndisciplinary  action could be taken against an employee for misconduct if such
\nacts are not enumerated in the misconduct under the standing orders.\n<\/p>\n
        19.  In the present case it was admitted by the petitioner\/ respondent
\nthat bigamy is not enumerated as a misconduct in the standing  orders  holding
\nthe field.    It is admitted by him that only for the misconduct of committing
\nbigamy, the respondent workmen was proceeded with and was removed from service
\nultimately.  The Labour Court has correctly applied the principles and the law
\nlaid down by the Apex Court and this Court  and  rightly  held  that  the  1st
\nrespondent-workman is entitled to reinstatement with conditions.\n<\/p>\n
        20.   Therefore,  I am unable to accept the contentions of the learned
\ncounsel for the petitioner-management and  the  writ  petition  filed  by  the
\nmanagement is  liable  to  dismissed  for  devoid  of  merits.    Accordingly,
\nW.P.No.21813\/2000  filed  by  the  petitioner-management  is   dismissed   and
\nW.P.No.6320\/2001  filed by the 1st respondent-workman is also dismissed as the
\nlearned counsel for the petitioner workman prayed for only the confirmation of
\naward as given by the labour Court.  However, there will be  no  order  as  to
\ncosts.\n<\/p>\n
sks\/smi<\/p>\n
To\n<\/p>\n
1.The Manager
\nPublic and Industrial Relations
\nNuclear Power Corporation
\nMadras Atomic Power Station
\nKalpakkam
\nKancheepuram District<\/p>\n
2.Central Government Industrial Tribunal\n<\/p>\n
-cum-Labour Court
\nSastri Bhavan, Nungambakkam
\nChennai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Manager vs P.Chnnnasamy .. 1St on 21 February, 2006 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-106038","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Manager vs P.Chnnnasamy .. 1St on 21 February, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-manager-vs-p-chnnnasamy-1st-on-21-february-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Manager vs P.Chnnnasamy .. 1St on 21 February, 2006 - 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