Unauthorized construction of a building within labour lines, regardless of any directions to the contrary by the management, and subsequent failure to dismantle the same, certainly affects the smooth and amicable relationship between employer and employee and would also tend to disturb the peace and discipline in the establishment. Such conduct on the part of a workman is clearly subversive of discipline and falls within the scope and ambit of Clause 10 of the Standing Order.

JUDGMENT :

D.M. Sen, J.—This is an application under Article 226 of the Constitution of India by the workman-petitioner against the order of the learned Presiding Officer, Labour Count, approving u/s 33(2)(b) of the Industrial Disputes Act, 1947, hereinafter called the "Act" the order of dismissal passed by the management on 3-9-1966.

2. The charge against the workman was (vide Annexure B p. 17) that he had built a pucca structure in between two labour quarters without permission and that when he was ordered in writing to dismantle the said unauthorised construction on or before 10-8-1966, he failed to do so, despite sufficient time and opportunity having been given to him. Accordingly, the workman was charged with willful disobedience of superior officer's lawful and reasonable orders, which amounted to a gross misconduct within the meaning of Clause 10(a)(1) of the Standing Order. Clause 10(a)(1) reads as under:

10(a)(1). Willful insubordination or disobedience, whether alone or in combination with another, or others of any lawful and reasonable order of a superior.

The evidence on record and the finding of the enquiry officer, which was duly approved by the management, leaves no room for doubt that the workman did in fact construct the building without authority. It is also clear that notwithstanding the refusal of permission by the management, he had erected a pucca structure near the existing kutcha shop house, which he had already built with the permission of the management for use as a fair price shop.

3. The management thereupon terminated the services of the workman on ground of gross misconduce under its power under the standing order.

4. Mr. R.C. Choudhuri, the learned Counsel appearing for the workman-petitioner, submits that the disobedience of the workman to refrain from constructing the building in question or to dismantle the said building cannot amount to a misconduct within the meaning of Clause 10(a)(1) of the Standing Order. Mr. Choudhuri has taken the ground that an act to be construed as misconduct must be an, act on the part of the workman, having some rational connection with his terms and obligations as a workman. In support of his contention, he has referred us to the decision in the case of Tata Oil Mills Co. Ltd. Vs. Its Workmen, AIR 1965 SC 155. In that decision, their Lordships have held--"In order that Standing Order 22 (viii) may be attracted, it must be shown that the disorderly or riotous behaviour had some rational connection with the employment of the assailant and the victim." Their Lordships held that a dispute of a purely private or individual nature would not attract the provisions of Order 22(viii) and amount to a misconduct.

5. In the instant case, we have therefore, to consider whether the act or con duct which has been levelled as misconduct and for which the workman has been dismissed did have any rational connection with his employment.

6. In the above connection, we may refer to the decision in the case of Work men of the Shalimar Rope Works v. Shalimar Rope Works Ltd. 1953 Lab. A.C. 584, where that Court had gone into the question as to when an act can be properly held to be a misconduct. The following guidelines were enunciated therein, to determine whether an act would be a misconduct, namely, if the act (1) is inconsistent with the fulfillment of the express or implied conditions of service or (2), is directly linked with the general relationship of employer and employee or (3) has a direct connection with the contentment or comfort of the men at work or (4) has a material bearing on the smooth and efficient working of the concern. If the answers to the above are in the affirmative, the act in question would amount to a misconduct. In other words, if it be found that the act of disobedience complained of has some relationship to the affairs of the factory, having a tendency or effect to disturb the peace and good order of the establishment, or be subversive of discipline in any dir