@JUDGMENTTAG-ORDER
Mishra, J.@mdashBy invoking the jurisdiction of this court under Articles 226 and 227 of the Constitution of India, the Management of Ashok Ley
land Limited, an industry has sought for a writ in the nature of certiorari to quash the award of the Third Additional Labour Court, Madras,
declaring that the non-employment of the 2nd respondent herein (the employee) is not justified and that he is entitled to reinstatement with
backwages and continuity of service and other attendant benefits. The 2nd respondent, it is said, was engaged as a semi-skilled worker and was in
the service of the petitioner, a company registered under the Companies Act and engaged in the manufacture of trucks at its factory at Ennore, until
March 21, 1981, on which date, it is alleged he absented himself unauthorisedly without leave and for the said reason, as per a clause in a
settlement dated June 1, 1974 (Supplemental to the Standing Orders) lost his lien on his work. The 2nd respondent raised a dispute u/s 2(A) of the
Industrial Disputes Act and the Government of Tamil Nadu by G.O.Ms. No. 388, referred the dispute for adjudication. The 1st respondent (third
Additional Labour Court), Madras, however, has found that under item No. 3 of the settlement which alone is said to be on the subject of dispute
came into operation if a workman absented himself for eight consecutive days without leave and since the workman has established that he was
absent only with leave, the said clause was not attracted. The Labour Court on this, has recorded as follows:
The worker has produced Exs.W-1 to W-12. It is evident that the police were searching for the worker from March 3, 1981 onwards and hence
he could not attend the office. Though the worker was really arrested only on March 9, 1981, a perusal of Ex.W-28 show that he claimed in the
Sessions Court that he was taken by the police on March 3, 1981 itself. However, he was arrested on March 9, 1981. It is evident that the
petitioner cannot attend the office due to reasons beyond his control. Even then, he has sent several letters by certificate of posting as well as by
registered post informing the office the reason for his absence and also claiming the leave. The evidence of WAV-1 the worker show that he was
released on bail on March 24, 1981 and immediately he went to attend the office with medical certificate, he was not allowed to enter the office by
the security guard. As the leave letters were sent by certificate of posting the presumption is that the respondent has received the letters. In fact one
of the leave letters marked as Ex.W-5 was sent by registered post and received by the respondent. Hence, the contention of the respondent
management that they did not receive any leave letter sent by the petitioner, could not be believed. The petitioner by examining himself and
producing Exs.W-1 to W-12 has proved that he has applied for leave and has sent several letters by certificate of posting and by registered post.
The respondent has not chosen to rebut the presumption ''viz., that they have not received the leave letters sent by certificate of posting M.W-1 is
not able to give any satisfactory explanation he states that the management has not received the leave letters sent by registered post.
The evidence of W.W-1 the worker clearly show that he could not attend the office from March 3, 1981 for reasons beyond his control. He has
immediately sent letters requiring leave from March 3, 1981 onwards. He has also sent letters from jail when he was in custody. As soon as he
was released on bail, he reported for duty but he was not allowed to do so by the respondent''s security guard.
2. The petitioner''s case is based on the said clause of settlement, which envisaged termination of the contract of service of a workman, if he
absented himself without leave for more than eight days continuously. The model Standing Orders, as shown in Schedule I of the Tamil Nadu
Industrial Employment (Standing Orders) Rules 1947 contain as Clause 7(3), a provision that if any workman remained absent without leave or
permission for more than eight consecutive days, he would be deemed to have left the employment, unless he gave satisfactory explanation for such
absence, in which case, the period of absence will be treated as leave without wages, provided that the absence of workmen due to a strike of
workmen in the Establishment would not be regarded absence and in case the workman had to leave the establishment in such circumstances, he
would be kept in the ""Badli"" list. The same, however, was omitted by a Government Order in G.O. Ms. No. 143, (Labour and Employment),
dated January 27, 1979. Learned counsel for the petitioner has conceded that the non-employment of the 2nd respondent was occasioned
because, according to the petitioner, he absented himself without leave for more than eight consecutive days and that this was effected only
because the petitioner adopted the Model Standing Orders and applied the same in the case of the 2nd respondent. It is the settled law that
Certified Standing Orders have statutory force. In the case of the 2nd respondent herein, the petitioner decided to invoke the above clause of the
Standing Order, which had already been deleted by the Government. The order of the Government cited supra was non-existent. It is not the
contention of the learned counsel for the petitioner that notwithstanding the said Government Order, in so far as the petitioner''s Establishment is
concerned the Standing Order, as it stood before the order of the Government omitting the same, continued to apply. A Constitution Bench of the
Supreme Court in the case of Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court,
Chandigarh and Others, , has laid down that the introduction of Section 2(oo) and Section 25-F of the Industrial Disputes Act, has substantially
curtailed the power of the management of an industry to terminate the services of an employee under Certified Standing Orders and under the
contract of employment. Section 2(oo) has defined the ''retrenchment'' to mean the termination by the employer of the services of a workman for
any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action, but not to include (a) voluntary retirement of the
workman, (b) retirement of the workman on reaching the age of superannuation, if the contract of employment contained a stipulation in that behalf
and (c) termination of the services of a workman on the ground of continued ill-health. Section 25F is a mandatory provision of the procedure to
be followed before a retrenchment becomes valid and legal and violation thereof would invalidate the termination of service. Dealing with the
provision in Clause 13(2)(iv) of a set of Certified Standing Orders, as applied to a private employer, which contained provisions similar to Clause
7(3) above, the Supreme Court, in the case of D.K. Yadav Vs. J.M.A. Industries Ltd., has held down: p.699 (1) that the definition of
''retrenchment'' in Section 2(oo) is comprehensive one intended to cover any action of the management to put an end to the employment of an
employee for any reason whatsoever and thus in all cases, Section 25-F of the Industrial Disputes Act shall be attracted, save the exceptions as
mentioned in Section 2(oo) of the Act and that while terminating the services for reasons other than the exceptions the employer is obliged to
follow the principles of natural justice. Unless excluded by express or implied intendment of a statute, it is well settled that in all actions in the public
law filed, of which there are any civil consequences, the principles of natural justice are inherent. The Supreme Court in (supra), has taken notice to
several other judgments of the Supreme Court to state as follows: p. 701
The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of a livelihood must meet the challenge
of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute rule or statutory rule or
rules or orders affecting the civil rights of result in civil consequences would have to answer the requirement of Article 14. So it must be right, just
and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the
purpose of principles of natural justice. The aim of both administrative enquiry as well as the quasi-judicial inquiry is to arrive at a just decision and
if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be
applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both.
12. Therefore, fair play in action requires that the procedure adopted must be just and fair and reasonable. The manner of exercise of the power
and its impact on the right of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty,
dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is
interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it
would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual
potency and versatile quality, equalisation in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is thereby
conclusively held by this Court, that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair
and reasonable.
13. In Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, this Court held that right to public employment and its
concomitant right to livelihood received protective umbrella under the canopy of Articles 14 and 21, etc. All matters relating to employment include
the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and
reasonable procedure prescribed under the provisions of the Constitution and the rules made under proviso to Article 309 of the Constitution or
the statutory provisions or the rules, regulations or instructions having statutory flavour. They must be conformable to the rights guaranteed in Parts
III and IV of the Constitution. Article 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance
with just and fair procedure prescribed by law conformable to Articles 14 and 21 so as to be just fair and reasonable and not fanciful oppressive
or at vagary. The principles of natural justice are an integral part of the guarantee of equality assured by Article 14. Any law made or action taken
by an employer must be fair, just and reasonable. The power to terminate the service of an employee/workman in accordance with just and fair
and reasonable procedure is an essential inbuilt of natural justice.
Article 14 strikes at arbitrary action. It is not therefore of the action but the substance of the order that is to be looked into. It is open to the court
to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is
to secure justice, procedural as well as substantive. The substance of the order is the soul and the effect thereof is the end result.
14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of
termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career, and
livelihood of dependants. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a
reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In Delhi
Transport Corporation v. D. T. C. Mazdoor Congress, (Supra) the Constitution Bench, per majority, held that termination of the service of a
workman giving one month''s notice or pay in lieu thereof without inquiry offended Article 14. The order terminating the service of the employees
was set aside.
3. The conclusive role of Article 21 of the Constitution which encompassed all matters concerning aperson includes living with dignity and secured
of livelihood read with Article 14 thereof guarantees that no individual contracted to serve in any work by another can be subjected to whims and
fancies of the latter (employer) and while effecting termination of the contract of service of the former, the latter will be required to adopt a
procedure, which is just, fair and reasonable. Before taking any action putting an end to the tenure of employee or workman, fairplay requires that
a reasonable opportunity to put forth his case is given to him by the employer and a domestic inquiry without complying with the principles of
natural justice, will offend Articles 14 and 21 of the Constitution of India. In view of the law, as above which has the sanction of Article 14 of the
Constitution of India (since it is the pronouncement of the Supreme Court in O.K. Yadav v. J.M.A. Industries Limited, (Supra) leaves thus no
option with the employer except to follow a just, fair and reasonable procedure before any decision to terminate the service of a workman is taken
by it in accordance with the Certified Standing Orders. In the case of the 2nd respondent, it is conceded by the petitioner, no opportunity was
given to him to show the cause which prevented him from reporting to duty. Reading the principles of natural justice in the above Standing Order
(as the Supreme Court has done in the case of D.K. Yadav, I have no hesitation in holding that the 2nd respondent''s unemployment for the said
reason for his absence without leave or permission in terms of the Certified Standing Orders, as above is unjust and unfair and violative of Articles
21 and 14 of the Constitution of India.
4. Learned counsel for the petitioner has canvassed however before me that if the reason of the validity of the 2nd respondent''s
retrenchment/termination of service is in violation of the principles of natural justice and that a just, fair and reasonable procedure has not been
followed the petitioner as the employer is entitled to proceed against the 2nd respondent for his unauthorised absence and take suitable action. He
has drawn my attention to the background facts as revealed it is alleged as the reason for the absence of the 2nd respondent from work, which are
as follows:
The 2nd respondent at the relevant time was an accused in C.C. No. 79 of 1981 u/s 302, I.P.C. and S.C. No. 12 of 1981 on the file of the
Sessions Court, Chenglepet relating to the murder of one Arputha on the night of 2nd March, 1981. The petitioner received a letter from the
Inspector of Police to the said effect. Until he was released by the court on bail, he absented for quite some time and he was not ready to report to
duty.
The 2nd respondent on the other hand, however, said that he had applied for leave and sent letters to the said effect and the petitioner knew that
he (2nd respondent) has applied for leave. In any event, he has been acquitted of the criminal charge by the Sessions Court, Chenglepet. Learned
counsel appearing for the 2nd respondent has urged that any one can see a just cause for the 2nd respondent''s absence from duty. It is not
correct, according to him, to say that the 2nd respondent was absconding. He was taken in custody and produced before a court and was in
remand for some days when he was free to report to duty, he did come to report to duty; but the petitioner prevented him from joining duty on the
ground that his unauthorised absence had caused the cessation of contract of service. According to learned counsel for the 2nd respondent, any
enquiry thus will be futile, if it is to be held only for the purpose of finding out whether the 2nd respondent had no just cause for his absence from
duty. He has submitted that the said Standing Order was not available at the relevant time and as it is not available for any purpose there can be no
enquiry therefore into this allegation. Learned counsel for the petitioner has clarified, according to him, although such a clarification was not
necessary that enquiry may engross a charge of misconduct on the 2nd respondent for his being involved in a serious act of moral turpitude which
caused a complete loss of faith of the petitioner in the 2nd respondent. He has for the said purpose referred to Clause 21 of the Standing Orders of
the Company, which contains a list of such acts or omissions which are treated as misconduct of an employee and drawn my attention to item 30
thereof which says any other act of misconduct.'' He has on the said basis, contended that the conduct of the 2nd respondent that he was involved
in the murder of a woman and which was an offence against the society, even though the criminal charge has ended in acquittal in a court of law,
would enable the employer, that is the petitioner, to proceed against him for holding an enquiry regarding dismissal or suspension and or any other
suitable action. Learned counsel for the 2nd respondent has however contended that the petitioner should take notice of the acquittal and agreed
that there is no room for any administrative action against the 2nd respondent. He (the petitioner) should be given no opportunity to contemplate
action in respect of something,which was never in contemplation and which is sought to be introduced after such a long time, i.e. more than a
decade. He has contended that the 2nd respondent''s involvement in the alleged murder is wholly unconnected with the affairs of his duty and work
as a semi-skilled workman in the employment of the petitioner. It is not possible to accept the contention of the learned counsel for the petitioner
that it can proceed against the 2nd respondent to hold enquiry and after affording opportunity to him, to show cause, if any decide whether for
unauthorised absence any action should be taken against him or not. The relevant clause of the Standing Orders under which such a decision could
be taken by the petitioner against the 2nd respondent is not available at all. The same has already been omitted under the aforementioned
Government Order. It is still relevant to consider whether the petitioner can subject the 2nd respondent to a proceeding on the charge that he
unauthorisedly absented himself and that he committed misconduct amounting to moral turpitude by being involved in the alleged murder of
Arputha for which murder charge, he had been acquitted by the Court of Session and it is said that a petition in revision against the order of
acquittal has also been dismissed. Courts ordinarily do not encourage disciplinary proceedings in a case of criminal charge, which is taken to the
court and ends in acquittal, for the obvious reason that the benefit of reasonable doubt which went in favour of the accused, should be treated as a
benefit to him in a departmental proceeding as well. Since, however, a charge in a criminal court and a departmental proceeding are two
independent actions and are taken against a delinquent in accordance with the law that govern the respective proceeding, even though the two
proceedings arise from the same set of acts, it is not held that a person, who has already been acquitted of the criminal charge by a competent
court, cannot be subjected to a departmental proceeding. Since the ordinary rule is to give the benefit of doubt, as I have noticed above, the
employer is expected to seek action against the employee even after acquittal by the competent court in exceptional cases. Such exception can
arise in a case, where in spite of acquittal, it is not possible to keep confidence in the employee for the reasons of his involvement in certain serious
acts of moral turpitude, such as acts endangering the security of the State, acts which cause disturbance to public order and public tranquility and
acts which cause serious apprehensions as to the conduct of an employee.
5. It is necessary for the employer to prescribe what should be the misconduct so that the workman/employee knew the pitfall he could guard
against. It is precisely for the said reason that acts and omissions constituting misconduct, are enumerated in the Certified Standing Orders. A
clause ''any other act of misconduct'' is retained in the Certified Standing Orders of the petitioner. It appears to keep available to the employer a
weapon to discipline a recalcitrant employee. While such a general provision in a given case can give to the employer authority to deal with a really
recalcitrant employee whose misconduct does not fall in any other act or omission, enumerated in the Certified Standing Orders, there is always a
chance of it being abused to get rid of an employee, who does not fulfil questionable desires of the employer.
6. In Agnani (W.M.) v. Badri Das and Ors., 1963 I LLJ 84, the Supreme Court has considered a case of an employee who was on leave and
taking side with another employee, quarelled with the lessee of provision stores, which was run for the benefit of the employees of that company.
The stores was situated within the Staff Colony constructed by the employer. Subject-matter of the quarrel was the demand made by the other
employee for return of articles found by him with the provision store-keeper. The Management framed nine charges against him, one of the charges
included the charge of quarrelling with the provision store keeper. The Industrial Tribunal held that the nature of misconduct alleged against the
employee was not within the disciplinary jurisdiction of the employer. Punjab and Haryana High court, however, held that the employees quarelling
with the store-keeper was an act of misconduct which was within the disciplinary jurisdiction of the employer. The Supreme Court had indicated
the law in this behalf in these words:
Now in dealing with the merits of the conclusion reached by the Tribunal and the High Court on this part of the case, it may be relevant to refer to
Standing Order 10, Clause (9). At the time when the enquiry was held no Standing Orders had been framed but apparently they have been framed
subsequently, and as we have already indicated the respondents relied upon Standing Order 10(9) before the Tribunal. Standing Order 10 inter
alia provides for the classification and description of misconduct. Clause (9) of this ""standing order says it would be misconduct which would entail
dismissal if alone or in combination with others, anywhere within the trust''s estate, an employee causes or threatens to cause mental and/or
physical pain or injury to other employees. It is plain that the conduct proved against the appellant does not fall under this clause. The quarrel was
between the appellant who espoused the cause of Chakerpani, another employee of the respondents and the shop-keeper Om Prakash. Om
Prakash is not an employee of the respondent, though he had been allowed to run the shop for the benefit of the respondents employees''. The
tribunal was, therefore, clearly right in rejecting the respondents case that the misconduct proved against the appellant was of a character which
would fall under Standing Order 10(9).
The Standing orders, which have been subsequently adopted by the respondents however, help us in determining what the respondents treat as
misconduct. One has merely to glance at the twenty categories of misconduct specified by para 10 of the Standing Orders to realize that a private
quarrel between an employee of the respondents and another citizen cannot fall within any of these categories. It is true that in the absence of
Standing Orders, it would be open to the employer to consider reasonably what conduct can be properly treated as misconduct. It would be
difficult to lay down any general rule in respect of this problem. Acts which are subversive of discipline amongst the employees would constitute
misconduct; rowdy conduct in the course of working hours would constitute misconduct, misbehaviour committed even outside working hours but
within the precincts of the concern and directed towards the employees of the said concern may, in some cases, constitute misconduct, if the
conduct proved against the employee is of such a character that he would not be regarded as worthy of employment, it may, in certain
circumstances be liable to be: called misconduct. What is misconduct will naturally depend upon the circumstances of each case. It may, however,
be relevant to observe that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of
his employees'' conduct in relation to strangers not employed in his concern by the use of the coercive process of disciplinary jurisdiction. As we
have already observed, it is not possible and we do not propose to lay down any general rule in that behalf. When Standing Orders were framed
there is no difficulty because they define misconduct. In the absence of Standing Orders, the question will have to be dealt with reasonably and in
accordance with commonsense.
In the present case, what is the conduct proved against the appellant? The appellant does not dispute the fact that he spoke sharp words to Om
Prakash but that quarrel was purely a private quarrel between Chakerpani and Om Prakash and the appellant intervened and wanted Om Prakash
to return the pawned articles to Chakarpani on his paying the amount borrowed by him. This incident has, no doubt, taken place in the colony built
by the respondents for their employees, but outside the premises and it has taken place between one of the employees and a shop keeper. When
we bear in mind the background of the dispute, the nature of the quarrel the time and place where it took place and its essential features, it is
difficult to accept the High Court''s conclusion that the tribunal committed an error on the face of the record when it held that the acts proved
against the appellant did not constitute misconduct. In this connection, it is necessary to emphasise that the tribunal was entitled to consider the
legality of the action taken by the respondents, because it held that the respondents had misdirected themselves in law in coming to the conclusion
that the incident in question amounted to misconduct at all. This aspect of the matter cannot be said to be outside the jurisdiction of the tribunal
when it was dealing with the Industrial Dispute referred to it.
7. A Bench of the Supreme Court in the case of Lalla Ram Vs. Management of D.C.M. Chemical Works Ltd. and Another, , dealt with a case of
an employee, who quarrelled with an Authority of the employer company, when the latter objected to the construction of a jhuggi (hutment) by
another person in front of his existing jhuggi. The Supreme Court after referring to Agnani (W.M.) v. Badri Das, (supra) and the case of Tata Oil
Mills v. Its Workmen, 1963 II LLJ 78, had said as follows: (p.511)
9. Though it is true that private quarrel between an employee and a stranger with which the employer is not concerned as in Agnani''s case, falls
outside the categories of misconduct, it cannot be reasonably disputed that acts which are subversive of discipline amongst employees or
misconduct, or misbehaviour by an employee which is directed against another employee of the concern may in certain circumstances constitute
misconduct so as to form the basis of an order of dismissal or discharge.
In Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, the Supreme Court has pointed out that a misconduct for
the purpose of a disciplinary action by the employer against the employee, must have casual connection with place of duty as well as date and time.
The employer has no extra territorial jurisdiction under the Standing Orders to punish for any misconduct of an employee. The Supreme Court has
said as follows: (PP 19-20)
10. In the days of laissez-fair 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 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 supreme 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 as 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 the 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. 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 cultural 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 the workmen within 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, viz., ''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 viz., 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
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 Standing Order 22 punishable under Standing Order 23, if committed within the premises of the establishment or in the vicinity thereof.
8. In yet another judgment in the case of Rasiklal Vaghajibhai Patel Vs. Ahmedabad Municipal Corporation and Another, the Supreme Court has
stated that unless either in the certified Standing Orders or in the service regulation an act of omission is prescribed as a misconduct it is not open
to the employer to fish out some conduct as misconduct and punish the workmen even though the alleged misconduct would not be comprehended
in any of the enumerated misconduct. I have noted the above pronouncements of the Supreme Court only to reinforce that which I have gathered
earlier that the employer is concerned with only such conduct of the employee, which affects him, and not any such conduct, which does not affect
him or which does not affect any conditions of service of the employee, such acts of omission which are enumerated as misconduct in the Standing
Orders of such regulations or which create a statutory or contractual prescription as regards the conduct of the employee alone, when violated will
give to the employer any occasion to proceed against the employees in a domestic enquiry for appropriate action and it will not be safe to accept a
general and pervasive expression like ''any other misconduct'' to extend the employer''s authority to deal with the employee in the name of his
committing a misconduct when such misconduct is neither enumerated in the Standing Orders, Rules or Regulations nor are invariably found in any
relevant provisions and/or in no way found connected with the affairs of the employer. This however should not be taken as a rule that employer in
no case can take notice of any act or omission of the employees which is not found within the work premises of the employer or which is not found
directly connected with the work of the employer. There can be many such acts of a person, which may be found affecting the society at large and
while affecting the society at large may be affecting the employer more, because the employee indulging in any such acts, has been working under
him and has been in his close vicinity. I have noticed just a few such acts of an employee, as an individual and a member of the establishment at
large which can be called in given circumstances, an anti-social act of that individual which for good reasons can be found to be misconduct
affecting the public interest and thus the interest of the employer as well. It will be difficult to imagine that even after coming to know of anti-social
activities of one of its employees, the employer shall be helpless and shall have no powers to take any disciplinary action against him. The view that
I have taken is fully in consonance with and is a derivative although not derived by me as such, of the view expressed by the Supreme Court in
Agnani ''s case, (Supra) and in Lalla Ram''s case, (Supra). The Supreme Court has never found anything wrong in the case of an employer taking
action against the employees for such acts of employees which are outside the service conditions which affect the society at large and employer in
particular.
9. In spite of the above, it is not possible in the instant case to leave the question of any further action against the 2nd respondent open for the
reason, that, (1) the only action contemplated by the petitioner against the 2nd respondent was that he had unauthorisedly absented himself and
thus under a specific provision in the certified Standing Orders, his employment has automatically ceased and the said Standing Order was non-
existent and even today is nonexistent, and (2) if such Standing Order or any other provision empowered the employer to proceed against the
employee, the petitioner failed to apply a just, proper and reasonable procedure and did not call upon the 2nd respondent to show the cause of his
absence and failed to decide the case in accordance with law. Enquiry if taken up again with the strict adherence to the principles of natural justice,
if at all, cannot extend to the enquiry into the conduct of the 2nd respondent for his alleged involvement in the murder of Arputha. The 2nd
respondent has been acquitted of the said charge and as I have noticed earlier, the petitioner should accept the verdict of acquittal and unless there
is some such evidence or material, which was not before the court in the criminal trial, which created serious apprehensions that might cause loss of
confidence in the 2nd respondent, the petitioner should not proceed against him. In any view, it will be very wrong on the part of my person to
revive something of any alleged misconduct, which had occurred more than a decade ago. In my considered view, therefore the conclusion
recorded by the corded by the Labour Court that the 2nd respondent''s unemployment is invalid and he is entitled to reinstatement with all
consequential benefits, is a proper and correct finding and order though for different reasons. There is no merit in this petition and it is accordingly
dismissed. The second respondent has been receiving under the orders of this Court in W.M.P. No. 7206 of 1985 some emoluments. which he
shall continue to receive until he is reinstated. The petitioner is directed to reinstate the 2nd respondent forthwith and cause no delay, the outer time
limit being two months and accordingly give to the 2nd respondent all consequential benefits. There shall be no order as to costs.
