Judgment:
Elipe Dharma Rao, J.
1. The writ appeal is directed against the order of the learned single Judge dated 22.06.2000 made in W.P. No. 4168 of 1992, which was filed seeking a writ of Certiorari, to call for the records of the 1st respondent in Case No. TSE Case No. 7/89 and to quash his order dated 25.07.1991.
2. The case of the appellant, in brief, is as follows:
The appellant/writ petitioner is engaged in the manufacture and sale of soaps and detergents. It has its Branch Office at Madras which caters to sale of goods in Southern States. The appellant/Management has appointed re-distribution stockists in various locations. The stockists operate their units in the vicinity of their locations. Every unit will cover about 40 retailers/wholesalers in a day. The appellant/Management posts Territory Sales Incharge (TSI) with headquarters in important cities and each TSI will have a specified territory to look after as his responsibility. There will be about 8 to 10 stockists under the control of each TSI. The duties of a TSI includes selection of redistribution stockists RS), overseeing their performance, sales promotion of the appellant's products. etc. Above a TSI, there are Sales Officer, Area Sales Manager, Branch Sales Manager and a Branch Manager. The TSI works along with the unit of the stockists and he has to accompany the unit with the Salesman of the stockist and make spot sales to various retailers.
3. It is further alleged that each retailer/wholesaler is provided with a retailer card which gives details of sales made by him and as and when purchases are made, the unit salesman will make entries of such purchases. Normally, a TSI is expected to work in the market for 6 hours a day and make about 35 to 40 calls on the retailers and wholesalers. In the stock control statement, the TSI also makes entries regarding his working with the redistribution stockist unit, the number of calls made by him and the value of the sales effected by him while working with the unit in the market. The object of the maintenance of Stock Control Statement, retailer cards, the submission of daily sales report is that it will prevent the TSI from malingering or making in any false reporting as the entries if not instantaneously made in the normal discharge of his work, there will be bound to be some discrepancies which will expose erring TSI of his irregularities in the discharge of his work.
4. It is further alleged that the Area Sales Manager of the appellant/Management found certain discrepancies in the daily sales reports of the appellant and they were not received for certain days in April 1989. When the matter was probed into further, it became evident that the second respondent was not working in the market as reported by him and he was making false reports about his working. The investigation made by the Area Sales Manager revealed that though in his daily sales report for 03.05.1989 the 2nd respondent stated that he worked from 1000 hours to 1400 hours and from 1500 hours to 1700 hours and made 35 calls, he had really worked for about half an hour only making 3 to 4 calls. Further in his daily report for 04.05.1989, the 2nd respondent stated that he worked from 1030 hours to 1330 hours in Othakadai and from 1400 hours to 1800 hours in K.K. Nagar area making a total of 35 calls but he had actually worked only for half a day with the Unit in Othakadai area and had made only 20 calls. He did not work in K.K. Nagar area at all on 04.05.1989. The 2nd respondent did not submit his daily reports for 05.05.1989 and 06.05.1989. In his stock control statement dated 20.05.1989, he showed that he made a total of 146 calls on 24.04.1989, 03.05.1989, 04.05.1989, 05.05.1989 and 06.05.1989. When the redistribution stockist Mr. Rajan of M/s. Visalakshi Syndicate was questioned, it was gathered that on 05.05.1989, the 2nd respondent worked with the R.S. Unit till 1400 hours and on 06.05.1989 he did not work in the market at all. It was also reported that on 03.05.1989, 04.05.1989 and 05.05.1989 while leaving the market in the middle, the 2nd respondent took away the retailer cards to fill them subsequently in order to make it appear that he had actually worked in the market.
5. The appellant/Management also came to know that on 19.04.1989 and 24.06.1989, the 2nd respondent borrowed a sum of Rs. 1000/- and Rs. 2000/- respectively from Mr. Rajan of Visalakshi Syndicates. On 03.05.1989 he gave a personal cheque for Rs. 3,500/- in favour of Visalakshi Syndicate and took Rs. 500/- on 04.05.1989. On 06.05.1989, the 2nd respondent approached Mr. Rajan of Visalakshi Syndicate for a loan of Rs. 2,000/- which he repaid on 23.05.1989 by handing over a cheque which he collected from one Mr. Srinivasan.
6. On the basis of the above investigation, a show cause notice dated 15.06.1989 was issued to the 2nd respondent calling upon him to explain the allegations and he gave his explanation dated 25.06.1989. While considering the explanation, it was discovered that in the daily reports in respect of 13.03.1989 he claimed that he worked in Rajapalayam from 1100 to 1300 hours and from 1300 to 1830 hours and made 32 calls. The 2nd respondent did not submit his daily reports in respect of his work on 03.04.1989 and 04.04.1989.
7. On 22.07.1989, a charge sheet containing 9 charges was issued to the 2nd respondent charging him with various acts of misconduct. While issuing the same, the 2nd respondent was given an opportunity to submit a comprehensive explanation in respect of all the charges including the additional charges. Even though the 2nd respondent was fully aware that he was asked to submit his explanation with reference to all the charges and that he was required to appear for an enquiry, he deliberately sent a telegram on 31.07.1989 seeking clarification whether the action initiated by the show cause notice dated 25.06.1989 had been dropped. On 01.08.1989 the 2nd respondent appeared for the enquiry with a typed letter addressed to the Enquiry Officer Ex. R-10. The 2nd respondent stated that he had sent a telegram to the Branch Manager stating that several new charges were framed in the charge sheet dated 22.07.1989 and that the enquiry should not be proceeded with before orders were passed by the Branch Manager on his telegram. On 01.08.1989 even though the witnesses coming from different places were present, the 2nd respondent left the enquiry hall, but the enquiry was conducted on 1st, 2nd and 3rd August 1989. On 11.08.1989, the Enquiry Officer gave his report holding that the charges against the 2nd respondent, except charge Nos. 2 and 9 were proved. On the basis of the findings of the Enquiry Officer, the 2nd respondent was terminated from service by order dated 30.08.1989.
8. Further it is alleged in the writ petition that against the termination order, the 2nd respondent preferred an appeal TNSE Case No. 7/89 under Section 41(2) of the Tamil Nadu Shops and Establishments Act before the 1st respondent. The appellant/Management filed a statement denying the stand taken by the 2nd respondent. Before the first respondent/Authority, on behalf of the workman, the workman himself was examined as A.W. 1 for oral evidence besides marking 17 documents as Exs. A.1 to A.17 and on behalf of the Management, 12 witnesses were examined as R.Ws. 1 to 12 for oral evidence and 58 documents as Exs. R.1 to R.58. In consideration of all these materials on record, the Appellate Authority, has found that all the charges framed against the workman are not proved and thus set aside the order of dismissal passed against the workman. It was also observed that the enquiry was vitiated for failure of principles of natural justice. Challenging the same, the writ petition has been filed.
9. After hearing both sides and after considering the facts and circumstances of the case, the learned single Judge has dismissed the writ petition, confirming the order passed by the 1st respondent. Aggrieved by the same, this writ appeal has been filed by the Management.
10. Much has been argued on behalf of the appellant/Management that an employee is expected to maintain absolute integrity, devotion to duty and do nothing which is unbecoming on his part and both the Appellate Authority and the learned single Judge have failed to consider the materials placed on record in their proper perspective and hence the findings recorded by them are unwarranted.
11. In support of his arguments, the learned senior Counsel appearing on behalf of the Management would cite the following judgments:
1. Agnani v. Badri Das and Ors. 1963 (1) LLJ 684,
2. M.M. Malhotra v. Union of India and Ors. 2005 (4) LLN 961, and
3. Chairman and M.D., Bharat Petroleum Corporation Ltd. and Ors. v. Raju T.K. 2006 (2) LLJ 113.
12. In the first judgment cited by the learned senior Counsel for appellant, i.e. Agnani v. Badri Das and Ors. 1963 (1) LLJ 684, a Three Judge Bench of the Honourable Apex Court has held:.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.
13. In the second judgment relied on by the learned senior Counsel appearing for the appellant Management, in M.M. Malhotra v. Union of India and Ors. 2005 (4) LLN 961 the Honourable Apex Court has held as follows:
The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct a closed. It has, therefore, to be noted that the word 'misconduct' is not capable of precise definition. But at the same time, though incapable of precise definition, the word 'misconduct' on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve.
The term 'misconduct' may involve moral turpitude. It must be improper or wrong behaviour, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite Rule of action or code of conduct, but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character.
14. In the third judgment cited by the learned senior Counsel for the appellant/Management i.e. in Chairman and M.D., Bharat Petroleum Corporation Ltd. and Ors. v. Raju T.K. 2006 (2) LLJ 113, in a case wherein the workman was required not to raise any loan with any person with whom he has official dealings and as against the said service rules, the workman had borrowed amounts from an organisation, with which the workman was having official dealings, the Honourable Supreme Court has affirmed the contention of the Management and has set aside the judgment of the High Court, which favoured the workman. The Honourable Apex Court has held as follows:.The charges levelled against the respondent must be considered on a holistic basis. By reason of such an action, the respondent had put the company in embarrassment. It might have lost its image. It received complaints from the Federation. There was reason for the appellant to believe that by such an action on the part of the respondent the appellant's image has been tarnished. In any event, neither the learned single Judge nor the Division Bench came to any finding that none of the charges had been proved.
15. On the contrary, on the part of the workman, the learned Counsel appearing on his behalf, would submit that the learned appellate Authority has scanned the entire materials placed on record and has found that the entire enquiry was vitiated for violation of principles of natural justice and the learned single Judge also, has considered the materials placed on record afresh and has affirmed the view of the appellate authority and therefore, would pray to dismiss this appeal preferred by the Management.
16. The learned Counsel for the workman has also cited the following judgments:
1. Glaxo Laboratories (I) Limited v. Labour Court, Meerut and Ors. ,
2. S. Alamelu v. The Superintending Engineer, South Arcot Electricity System (S), Villupuram ,
3. J. Dhanaraj v. T.N.E.B. and Ors. and
4. Tamil Nadu Electricity Board v. Central Organisation of Tamil Nadu Electricity Employees and Anr. .
17. In the first judgment cited by the learned Counsel for the workman, in Glaxo Laboratories (I) Limited v. Labour Court, Meerut and Ors. , a Three Judge Bench of the Honourable Apex Court has held:
It cannot be left to the vagaries of the management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is none the less 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. The contention that some other act of misconduct, which would per se be an act of misconduct, though not enumerated in the standing order, can be still punished must be rejected.
18. In the second judgment cited by the learned Counsel for the workman, in S. Alamelu v. The Superintending Engineer, South Arcot Electricity System (S), Villupuram a Division Bench of this Court has held that 'no disciplinary action can be taken for violation of Conduct Regulation unless violation of same regulation is made a misconduct under Standing Orders.'
19. In the third judgment cited by the learned Counsel for the respondent workman, in J. Dhanaraj v. T.N.E.B. and Ors. , a Division Bench of this Court has held that 'Certified Standing Orders providing for acts and omissions constituting misconduct would prevail over the provisions of Conduct Regulations.'
20. In the 4th judgment cited by the learned Counsel for the respondent workman, in Tamil Nadu Electricity Board v. Central Organisation of Tamil Nadu Electricity Employees and Anr. , a Division Bench of this Court, while considering the question as to 'whether non-enumerated misconduct can form subject can form subject matter of disciplinary action' has held that 'misconduct not enumerated in Standing Orders cannot be introduced by circular or memorandum and non-enumerated misconduct cannot be read into Service Standing Orders and employer can only seek amendment of certified Service Orders, to include non-enumerated misconduct.'
21. In the backdrop of the above submissions and the judgments, now we have to examine the case on hand.
22. True, an employee of an organisation needs to maintain utmost discipline, absolute integrity, devotion to duty and must restrain himself from doing anything which is unbecoming on his part and inconsistent with the interest of public service. While on the part of the Management, they argue that even in the absence of a standing order, regarding a misconduct, it could initiate disciplinary proceeding, on the part of the workman, it is strenuously argued that no such liberty vests with the Management and the Management has to heed only to the Standing Orders and if the alleged misconduct is not defined in the Standing Orders, the Management should seek amendment of the Standing Orders. Many judgments of the upper forums of law are pressed into service by both the sides, as has been extracted supra.
23. It is an admitted fact that the appellant is an 'industry' within the meaning of Industrial Disputes Act, but, however, no Standing Orders are there for the appellant Management. The stand of the Management is that since it is an industrial establishment, the provisions of Industrial Employment (Standing Orders) Act will apply.
24. On a close scrutiny of the charges framed against the workman, we could not find mentioning of any provision of law or Standing Order therein, under which the alleged acts of the workman, could be termed as a misconduct. However, it has been argued on behalf of the Management that the meaning 'misconduct' has got wider connotation. Even accepting that the term 'misconduct' has got wider connotation, we fail to understand the non-mentioning of any provision of law or Standing Order in the show-cause notices issued to the workman, under which the alleged acts of the workman could be termed as a misconduct and such an ex post facto determination by the Management, fishing out the alleged conduct of the workman as misconduct, in the absence of any service regulations or certified standing orders, cannot be permitted. At this juncture, we feel it appropriate to quote a judgment in Rasiklal Vaghajibhai Patel v. Ahmedabad Municipal Corporation and Anr. (1985) 66 FJR 225 , wherein it has been held:
Even though either 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/employee knows the pitfall he should guard against, if, after undergoing the elaborate 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 tenterhooks and he will be punished by ex post facto determination by the employer. It is a well-settled cannon of penal jurisprudence that removal or dismissal from service on account of misconduct constitutes penalty in law and that the workman sought to be charged for misconduct must have adequate advance notice of what action or what conduct would constitute misconduct.
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 misconducts.
25. Thus, when the employee is kept under dark as to what is 'misconduct' in the eye of the Management, it is not open to the employer to fish out some conduct of the employee as misconduct and punish the employee. In the case on hand, there is no doubt that the respondent/workman was under dark, since the Management has not even quoted the provision of law or the Standing Order under which his alleged act is a 'misconduct', to attract punishment. Even if it is admitted that under the provisions of the Industrial Employment (Standing Orders) Act, the Model Standing Orders would apply, we are not able to appreciate the non-mentioning of any provision in the charges framed against the respondent/workman, thus depriving him of making an effective defence.
26. The appellate Authority has analysed all these aspects in their proper perspective and has correctly held that the so-called enquiry conducted by the Management is vitiated by law.
27. Even if it is held that the alleged acts of the workman squarely falls within the wider meaning of 'misconduct', the appellate authority, on minute scrutiny of the entire evidence placed on record, has held that none of the charges are proved against the workman, which was confirmed, in toto, by the learned single Judge. It is also seen that On a thorough perusal of the entire materials placed on record, we find nothing on record to take a different stand from that of the appellate authority and the learned single Judge.
28. Another astonishing factor, we found out from the materials placed on record is that a show-cause notice was issued to the delinquent officer on 15.6.1989, under six heads, with two sub-heads to charge No. 4 and four sub-heads to charge No. 6. To the said show-cause notice, the delinquent officer has submitted his explanation on 25.6.1989. Thereupon, another show-cause notice dated 22.7.1989 was issued to the delinquent officer by the Manager, framing charges under ten heads, with two sub-heads under charge No. 3 and four sub-heads under charge No. 5. As could be seen from this second show-cause notice, the Management has stated therein as follows:
A show cause notice dated 15.6.89 in respect of some of the above charges was issued to you in reply to which you submitted your explanation dated 26.6.89. The same has been found to be unsatisfactory. If so desired, you may also submit a fresh explanation to the above charges within 3 days of receipt hereof. It has been decided to hold an Enquiry to enquire into the above charges levelled against you and Shri D.Batnagar, BSM Madras Branch has been appointed as Enquiry Officer. Accordingly, the enquiry will be held by Shri D.Bhatnagar on 1st August 1989 at Hotel Madurai Ashok, Alagarkoil Road, Madurai at 10.00 a.m....
29. To this enlarged scope of enquiry, an objection was raised by the delinquent on 1.8.1989, which is marked as Ex.R.10. Thus, even as per the Management, only in respect of some of the charges mentioned in the show-cause notice dated 22.7.1989, explanation was called for from the delinquent officer. It is a well settled principle of law that whenever any fresh show-cause notice with fresh allegations is issued to the delinquent officer, he must be given an opportunity to explain the same and only on consideration of his explanation, the Management should decide as to whether any enquiry is necessary into such additional allegations and if the Management is not satisfied with his explanation, then only, they should proceed to frame the charges and enquiry, under intimation to the delinquent. But, in the show-cause notice dated 22.7.1989, an Enquiry Officer was appointed to enquire into all the charges, further fixing the date, time and venue of the enquiry, before even submitting any explanation by the delinquent officer, for which three days time was given. All these aspects make it clear that the Management has already decided to go on with the enquiry, dehors consideration of the explanation of the workman. In all fairness, the Management, should have sought for explanation of the delinquent regarding the additional allegations, giving sufficient time, and if it is found to be not satisfactory, then only, they should have proceeded to conduct the enquiry, by appointing the Enquiry Officer. Therefore, it is clear that whatever enquiry has been conducted by the Management through the Enquiry officer is only a name sake one and the enquiry was conducted, as has been correctly pointed out by the learned appellate authority and the learned single Judge, in utter violation of the principles of natural justice and with the sole aim of sacking the delinquent.
30. All the facts and circumstances of the case have been appreciated by the appellate authority in their proper perspective and has rightly arrived at the conclusion of setting aside the dismissal order of the workman. The learned single Judge has also appreciated the facts and circumstances of the case correctly and has rightly dismissed the plea of the Management. In such concurrent findings of the learned appellate authority and the learned single Judge, we find no illegality or irregularity or perversity in approach and therefore, the interference sought to be made into such a well considered and merited findings of both the learned appellate authority and the learned single Judge is unwarranted and uncalled for.
In the result, this writ appeal fails and the same is dismissed. No costs.