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1993 Supreme(Bom) 34
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
H.D. Patel M.B. Ghodeswar, JJ.
Maniram s/o Nayansingh Thapa and others.... Appellants.
Versus
M/s. Richardson Cruddas (1972) Ltd..... Respondent.
Letters Patent Appeal No. 71 of 1992. (Arising out of Writ Petition No. 53 of 1992), decided on 28-1-1993.
Advocates appeared :
S.D. Thakur, for the appellants.
R. Pillai, for the respondent.
Headnote:Sections 78 & 79-Employee-Disciplinary action resorted by company against whether valid.
Held, it may not be out of place to mention here that by presistent and obstinate attitude of the appellants, the respondent-Company is prevented from expanding its activities. The quarters are situated in one corner of the compound in which the factory is situated. It is not open for the employees to question the expansion activities unless it is mala fide attempt to oust the employees. The very fact that the appellants initially agreed to vacate the quarters does indicate that there was a genuine desire on the part of the respondent-Company to expand the activities. This is also clear from the fact that the Elected Representatives of the employees, who functioned in place of Representative Union, did not oppose the move of the respondent-Company. If in these circumstances the disciplinary action was resorted by the Company they were held thoroughly justified.
Sections 78 & 79-Model Standing Orders, Clause 22-Employees - Grave misconduct proved against sufficient to impose penalty of dismissal irrespective of fact that what other past record may be.
Though the Disciplinary Authority has considered the extenuating and aggravating circumstances, the previous record is not taken into account. However, the behaviour of the appellants in relation to the misconduct itself is a glaring past record which can be taken into consideration. The appellants were called upon to vacate the quarter by letter dated 16-4-1984. However, they failed to vacate and the commission of misconduct is complete. In response to a representation made by the appellants for grant of time till Diwali of 1984 on the ground that it would be inconvenient to vacate the premises in rainy season, the request was granted upon their agreeing to vacate the premises as promised. But the assurance was not carried out. For the second time, the appellants disobeyed to comply with the order of the employer. Again au representation by the Elected Representatives of Employees, time came to be extended till April end, again on the assurance that appellants would vacate, the responsibility for which the elected Representatives has taken. Still the premises, were not vacated. It was then the charge-sheet was served and the enquiry held. The conduct clearly reveals not only the past record but also the aggravating circumstances. The misconduct is still continuing and recurring. Therefore, to contend that this behaviour, which is nothing but past record, was not considered is a myth. Even otherwise, the misconduct proved against the appellants, was so grave that by itself was sufficient to impose the penalty of dismissal Irrespective of the fact what the other past record may be.
Sections 78 and 79-Model standing orders, Clause 22-Misconduct - Dismissal order on ground of-Whether valid?
The refusal to vacate the residential quarters cannot be read as an act which constitutes misconduct in Clause 22 of the Standing Orders Therefore, the respondent-Company could not have issued a chargesheet on that ground. The contention is totally misconceived and baseless. This is clear from the fact that even the learned industrial Court, who granted relief to the appellants did not agree with the proposition sought to be laid, The refusal to vacate the quarters when called upon to do so would ultimately result in the act or omission as described in the Standing Orders and. that is, insubordination or disobedience of the reasonable and lawful orders of the employers, The facts constituting the misconduct cannot be expected to be found in the Standing Orders. It is not in dispute that the appellants are occupying the residential quarters belonging to the Company. They were asked to vacate the quarters by notice dated 26-5-1984 followed by two other notices dated 1-7-1984 and 8-4-1985 The Company had disclosed the reason in their very first notice that the site is required for expansion activities, Time was also extended upon request being made and the assurance giving from time to time. It can never be said that the orders to vacate were unreasonable or unlawful. The persistent and obstinate behaviour of the appellants in not obeying the orders c1earlv shows the wilful intention on their part. The High Court cannot, therefore, hold that the misconduct is beyond the purview of the Standing Orders.
Section 78 (1) (D) (i)-Scope of.
A requirement of the Section 78 (1) (D) (i) of the Bombay Industrial Relations Act that in case the Court finds that the order of dismissal was passed for misconduct committed by the employee which came to the notice of the employer more than six months prior to the date of the order, reliefs as specified in that very section could be granted. The provision on which reliance placed is not mandatory and it is open for the employer to explain the delay. That delay is explained on behalf of the respondent-Company that the misconduct committed by appellants was of a continuing and recurring type and it persisted till stay was granted by the District Judge in appeal preferred by them under the P. P. Act. The misconduct committed by the appellants was of a continuous and recurring nature and in this situation, the misconduct same to the notice of the employer every day even after issuance of the charge-sheet and even beyond the order of dismissal.
The High Court hence cannot accept the contention that due to lapse of time the charge-sheet and the subsequent proceedings are vitiated thereby.
MODEL STANDING ORDERS
Clause 22-See Bombay Industrial Relations Act, 1946, Sections 78 and 79.
Clause 29-See Public Premises (Eviction of Unauthorised Occupants) Act, 1971, Section 15.
PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT, 1971.
Section 15-Model Standing Orders, Clause 29-Employer-employee relationship and speedy and summary action-Two procedures of to evict unauthorised employee-When can be operated?
It is in this backdrop that the law providing for more drastic and prejudicial procedure is liable to be condemned as discrimatory and void. In the present case, the two procedures on which the appellants rely operate in different fields. One of them, which is followed, relates to employee employer relationship and the other provides for a speedy and a summary procedure to evict unauthorised occupants from public premises and for realising arrears of rent and damages. The main purpose for enacting the Act 11 to void complicated procedure of ordinary Civil Court. Since the two procedures are operating in different fields, it is difficult for us to accept that the respondent-Company should not have followed the procedure of charge-sheeting the employees only because eviction of the appellants was possible under the P.P. Act.
2. Though the appellants were engaged earlier, they were allotted quarters in the year 1974. The allotment was subject to conditions mentioned in letter dated 31st July, 1974. It was open for the management to cancel the order of allotment without assigning any reason. In the year 1984 the respondent Company issued notices to the appellants to vacate the quarters. The reason for calling upon the appellants to vacate the quarters was mentioned in their memorandum dated 20-5-1984. It was mentioned therein that the land over which the temporary quarters are built is required by the respondent Company for expanding its activities and these quarters are required to be demolished. One months time was given for the purpose. Time was, however, extended upto Diwali of that year upon their request on humanitarian grounds. The appellants failed to vacate and hence power and water supply was discontinued. Upon representation by the Elected Representatives of Employees to restore the power and water supply connections and permit them to occupy the premises till 30-4-1985 on account of the education of the children, the request was allowed by the Company. It was so because the Elected Representatives had given an undertaking that they take the responsibility to get the quarters vacated. Even then the quarters were not vacated. The appellants were charge-sheeted on 20-5-1985 under Clause 22 of the Model Standing Order for wilful insubordination or disobedience of any lawful and reasonable order of the superior and also habitual breach of any law, rules or Standing Orders applicabe to the establishment. An enquiry was held and upon the misconduct having been established, the appellants were dismissed from service.
3. The first ground of attack was that the charge-sheet itself was illegal and consequently, the order of dismissal because the facts constituting the misconduct are outside the scope of Standing Orders. The submission was, as we have understood, that failure or refusal to vacate the residential quarters by an employee is not described as a misconduct under the Standing Orders. In other words, the refusal to vacate the residential quarters cannot be read as an act which constitutes misconduct in Clause 22 of the Standing Orders. Therefore, the respondent Company could not have issued a charge-sheet on that ground. The contention is totally misconceived and baseless. This is clear from the fact that even the learned Industrial Court, who granted relief to the appellants did not agree with the proposition sought to be laid. The refusal to vacate the quarters when called upon to do so would ultimately result in the act or omission as described in the Standing Orders and, that is, insubordination or disobedience of the reasonable and lawful orders of the employers. The facts constituting the misconduct cannot be expected to be found in the Standing Orders. It is not in dispute that the appellant
