LexRASIKLAL VAGHAJIBHAI PATEL versus AHMEDABAD MUNICIPAL CORPORATION AND ANOTHER
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A B c D E F G H 556 RASIKLAL YAGHAJ!BHAI PATEL v. AHMED ABAD MUNICIPAL CORPORA T!ON AND ANOTHER January 14, 1985 [D.A. DESAI AND RANGANATH MISRA, JJ.] Labour La1v-Mi£Conduct-Whether suppression of111aterialfact regardiT1g prior dismi~sal at rhe ti!ne of obtaining fresh en1p[uy1ne11t constitutes "miscon- duct" - Whether St anding Orders or Service Regulations should enunierate an act or omissison as "niisconduct" - f;ffect of non-prescribing the acts of" misccnduct" in the Standing Order/Service Regulations. The petitioner applied for the post of Head Clerk with Ahmedabad Municipal Corporation in a prescribed form which contained a column requiring the applicant to state whether he had been removed from service and, if so, reasons for such removal. The petitioner, who had earlier been removed from service of the Sales Tax Department on the ground of proved TI?-isconduct, made a false suggestion that he had voluntarily left service because of transfer. Ultima- tely, when these facts came to light, he was charge-sheeted and removed from service. The L3.bour Court rejected his petition against removal from service on the ground that the misconduct alleged against him is proved. Thereupon, he filed a writ petition in the High Court. The High Court while dismissing his petition held that even if the allegation of misconduct does not constitute miscon- duct amongst those enumerated in the relevant service regulations yet the emplo- yer can attribute what would otherwise per se be a misconduct though not enu- merated and punish him for the same. Dismissing the petition by the Petitioner, HELD : (1) It is a well-settled canon of penal jurisprudence that removal or dismissal from service on account of the misconduct constitutes penalty in law and therefore the workman sought to be charged for misconduct must have adequate adva- nce notice of what action or what conduct would constitute misconduct. Therefore, under, the Certified Standing Orders or Service regulations, it is necessary for the employer to prescribe what would be the misconduct so that the workman/ernplo.. Yee knows the pitfall he should guard against. But, if after undergoing the elabo- rate exercise of enumerating misconduct, it is left to the unbridled discretion of the. employer to dub any conduct as misconduct, the workman will be on tenter- hooks and he will be punished by ex post facto determination by the employer. Therefore, it cannot be left to the vagaries of management to say ex post facto ' R.V. PATEL v. MUNICIPAL CORPORATION (Desai, J.) 557 that some acts of omission or commission nowhere found to be enumerated in . A the relevant standing order is none-the-Jess a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty. · [559C-E; B-C; 561C and DJ Glaxo Laboratories y. The Presiding Officer, Labour Court, Meerut & Ors. [1984J 1 SCR 230 fo!lowed. B .., ' Saletn Erode Electricity Distribution Co. Ltd. v. Salem Erode Electric!t.~' Distribution Co. ltd. Em/iloyees Unicm [196612 SCR 498, Western India Match Cotnpany Lid. v. Workman [1974] SCR 434, Workmen of Lakheri Cen1ent Works Ltd. v. Assooiated Cement Companies Ltd. 1970 20. Indian Factories & Labour Reports 243 & Rohtak Hissar District Electricity Supply Co. Ltd. v. State of Utter Pradesh & Ors. [1966J 2 SCR 863 referred to. • ' (2) It is thus well-settled that unless either in the Certified Standing Order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and punish the workman even though the alleged misconduct would not be comprehended in any of the enumerated misconduct. [561E] (3) In the instant case, the petitioner is shown to be guilty of suppression of a material fact which would weigh with any employer in giving him employ- ment and therefore, the case of the petitioner does not merit consideration under Art. 136 of the Constitution and his petition for special leave to appeal must accordingly fail. The High Court was right in holding that the suppresie1 veri and suggestio fills£ would constitute misconduct. But, the finding of the High Court that even if the misconduct does n9t fall in any of the enumerated misconducts, yet for the purpose of service regulation, it would none-the-Jess be a misconduct punishable as such is not
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