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TMI Blog1983 (10) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... ex-parte injunction restraining the workmen from indulging into unfair and illegal activities. On May 27, 1977 around 5.35 p.m., some of the workmen who had not joined the strike and who have been referred to in the discussion as 'loyal workmen' boarded bus No. UPB-6209 chartered by the appellant company exclusively for the use of the 'loyal workmen' commuting between the city and the factory. It is alleged that some of the striking workmen including the second respondent boarded the bus and during the journey in the bus at different places manhandled the 'loyal workmen'. According to the appellant company, this action of the second respondent and his striking colleagues 9 in number whose names have been set out in the chargesheet constitutes misconduct specified in Clauses 10, 16 and 30 of Standing Order 22 applicable to the workmen employed by the appellant company. Accordingly, a charge-sheet dated June, 6, 1977 was served upon the second respondent who in turn approached the Labour Court Under Section 11-C of the U.P. Industrial Disputes Act, 1947 inviting the Labour Court to hold that on a correct interpretation of the relevant standing Order, the alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises of the establishment and not in the vicinity thereof. It further held that it was open to the appellant company to held an enquiry into the alleged act of misconduct of the second respondent and his co-workers in respect of charges 2 (a) and 2 (b) of the charge-sheet drawn-up by the appellant. There are other finding of the Labour Court with which we are not concerned in this appeal. 4. The appellant moved the Allahabad High Court under Articles 226 and 227 of the Constitution in civil Misc. Writ Petition No. 5437 of 1979. A Division Bench of the ascertaining whether the construction put on these three clauses both by the Labour Court and the High Court is fair, reasonable and serves the purpose for which these clauses were framed, none the less we would strictly confine ourselves to find out whether the misconduct as alleged in the charge-sheet as on demur is such as would squarely fall within the aforementioned three clauses, and every hypothetical case would be excluded from further consideration. 5. The appellant company has in all framed 8 independent charges divided into Clauses 2 (a) to 2 (h) of the charge-sheet dated June 6 1977. The Labour Court has permitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gering the lives of the safety of other workmen or endangering the safety of the company's premises, machinery or equipment; (30) Being rude towards officers, employees, customers of and visitors to the company. 8. The submission which found favour with the High Court is that all these various acts of misconduct collocated in Clause 10 in Order to be a misconduct punishable under S.O. 23 must be committed within the premises of the establishment or in the vicinity thereof, and that the situs of misconduct as set out in the chargesheet will show that alleged acts of misconduct occurred far away from the establishment of the appellant company and therefore, Clause 10 of S. O. 22 would not be attracted. Undoubtedly, looking to the language of Clause 10 of S.O. 22 of the certified Standing Orders applicable to the company framed in English, the High Court found some difficulty in holding that the expression 'committed within the premises of the establishment, or in the vicinity thereof would only qualify the expression 'any act subversive of discipline and efficiency and any act involving moral turpitude' but not the earlier portion of Clause 10 which sets out variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t applies is under a statutory obligation to draw up and submit to the Certifying Officer five copies of the draft standing Orders for adoption in the industrial establishment (Section 3). Section 5 requires the Certifying Officer to forward the copy of the draft standing Order to the trade union, if any, of the workmen, or where there is no such trade union, to the workmen in such manner as may be prescribed, together with ,a notice in the prescribed form requiring them to submit their objections, if any. Sub-section (2) of Section 5 requires the Certifying Officer to decide after hearing the representatives of the employer and the trade union or the workmen : whether or not any modification of or addition to the draft submitted by the employer is necessary. Such certified standing Orders shall be filed by the Certifying Officer in a register in the prescribed form maintained for the purpose and the Certifying Officer shall furnish a copy thereof to any person applying therefore on payment of the prescribed fee. Section 12 excludes oral evidence having the effect of adding to or otherwise varying or contradicting standing Orders as finally certified under the Act. , Section 13C, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erpretation as to advance the intendment underlying the Act and defeat the mischief. 13. After reading Clause 10, Mr. Shanti Bhushan contended that the expression 'committed within the premises of the establishment or in the vicinity thereof can qualify only the expression 'any act subversive of discipline and efficiency and any act involving moral turpitude' but not the earlier portion of the clause. Numerous acts of misconduct have been collected in Clause 10 such as drunkenness, fighting, indecent or disorderly behaviour, use of abusive language, wrongfully interfering with the work of other employees etc. Says Mr. Shanti Bhushan that these acts of misconduct are per se misconduct that each one of them cannot have any correlation to the time or place where it is committed and each one of it is an act of misconduct irrespective of the time and place where it is committed. Expanding the submission, it was urged that drunkenness is such a socially reprehensible action that if it is committed within the premises of the establishment or in the vicinity thereof or anywhere else at any point of time it would none the less be an act of misconduct comprehended in Clause 10 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 namely, Certifying Officer has to certify the same. 14. 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 S.O. 22 punishable S.O. 23, if committed within the premises of the establishment or in the vicinity thereof. 15. What constitutes establishment or its vicinity would depend upon the facts and circumstances of each case. 16. Mr. Shanti Bhushan, however, urged that the trend of decisions indicates that the expression 'committed in the premises of the establishment or in the vicinity thereof indicates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not refer to such specific acts of misconduct as drunkenness, fighting, indecent or disorderly behaviour, use of abusive language etc. If a workman is involved in a riot or indulge in fighting somewhere far away from the premises of the establishment , it has no causal connection with his performance of duty in the industrial establishment in which he is employed. Further in that case, the Court put a wide construction on a penal measure but did not choose to set out its reasons for departing from the well-established principle that penal statutes generally receive a strict construction. 'A statute is regarded as penal for the purpose of construction if it imposes fine, penalty or forfeiture other than penalty in the nature of liquidation of damages or other penalties which are in the nature of civil remedies. It is a general rule that penal enactments are to be construed strictly and not extended beyond their clear meaning. See Halsbury's Law of England, 4th edition Vol.1 44 paragraphs 909, 910 at page 560. It cannot be seriously questioned that S.O. 22 is a penal statute in the sense that it provides that on proof of misconduct penalty can be imposed. It cannot be dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the incident took place in the quarters at a short distance from the coal-bearing area. If the incident occurred in the quarters occupied by the workmen who were working in a nearby coal bearing area, one can safely conclude that the incident occurred in the vicinity of the establishment and that was the governing factor which swayed the decision. And the decision was reached as specifically stated in the special circumstances of the case while leaving no trace of doubt about the normal approach in law to the construction of a standing order that it would apply to the behaviour on the premises where the workmen discharge their duties and during working hours of their work. This clearly imports time-place content in the matter of construction. This decision would rather clearly indicate that the misconduct prescribed in a standing order which would attract a penalty has a causal connection with the place of work as well as the time at which it is committed which would ordinarily be within the establishment and during duty hours. 18. Reference next was made to Lalla Ram v. Management of D.C.M. Chemical Works Ltd. and Anr. (1978) ILLJ 507 SC In that case one Shyam Singh, who was A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory constitutes misconduct, every such behaviour unconnected with employment would not constitute misconduct within the relevant standing order. therefore, even where the standing order is couched in a language which seeks to extend its operation far beyond the establishment, it would none the less be necessary to establish causal connection between the misconduct and the employment. And that is the ratio of the decision, and not that wherever the misconduct is committed ignoring the language of the standing order if it has some impact on the employment, it would be covered by the relevant standing order. In order to avoid any ambiguity being raised in future and a controversial interpretation question being raised, who must, make it abundantly clear and incontrovertible that the causal connection in order to provide linkage been the alleged act of misconduct and employment must be real and substantial, immediate and proximate and not remote or tenuous. An illustration would succinctly bring out the difference. One workman severely belaboured another for duty on the next day. Would 'this absence permit the employer to charge; the assailant for misconduct as it had on the worki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof are the words of limitation and they must receive due attention at the hands of the interpreter and the clause should not receive such broad construction as to render the last clause redundant. 24. It was next contended that while misconduct is enumerated in S.O. 22, the punishment is prescribed in S.O. 23, and the expression 'misconduct' in S.O. 23 would comprehend any misconduct irrespective of the fact whether it is enumerated in S.O. 22 or not. The preamble of S.O. 23 reads as under : 23 (a) Any workman who is adjudged by the manager on examination of the workman, if present, and of the facts to be guilty of misconduct is liable to be... The submission is that the expression 'misconduct' under S.O. 23 is not qualified as the one set out in S.O. 22 and therefore, any other act of omission or commission which would per se be misconduct would be punishable under S.O. 23 irrespective of the fact whether it finds its enumeration in S.O. 22. The Act makes it obligatory to frame standing orders and get them certified. Section 3(2) requires the employers in an industrial establishment while preparing draft standing orders to make provision in such draft for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t aside the Order of termination in an application Under Section 33A. In the appeal by certificate granted by the High Court, the workman contended that Section 33 may be contravened in varieties of ways and the only question that needs to be examined is whether there was a contravention by the employer in that it did not make any application to the Tribunal for the approval of the Order of termination of service of the workman. It is in this context that while allowing the appeal of the workman this Court observed as under : Standing Orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workman may commit. Even though a given conduct may not come within the specific terms of misconduct described in the standing Orders, it may still be a misconduct, in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action. Ordinarily, the standing Orders may limit the concept but not invariably so. Relying on these observations, Mr. Shanti Bhushan urged that, this Court has in terms held that there can be some other misconduct not enumerated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d settle a mutually beneficial bargain between the employer and the workman. Such a bargain, they took it for granted, would secure fair terms and conditions of employment to the workman. This law they venerated as natural law. They had an abiding faith in the verity of this law. But the experience of the working of this law over a long period has belied their faith. Lastly we may refer to Workmen of Lakheri Cement Works Ltd. v. Associated Cement Companies Ltd. [1970] 20 I F & L R 243 This Court repelled the contention that the Act must prescribe the minimum which has to be prescribed in an industrial establishment, but it does not exclude the extension otherwise. Relying upon the earlier decision of this Court in Rohtak Hissar District Electricity Supply Co. Ltd. v. State of Uttar Pradesh and Ors. the Court held that everything which is required to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account" as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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